NEERAJA CHAWLA Vs. DIVAS CHAWLA AND ANOTHER

JUDGEMENT

(1.) The present revision petition is directed against the impugned order dated 22.03.2018 (Annexure P-1) whereby an application submitted by respondent No.1-husband before the Family Court in divorce petition for summoning respondent No.2, herein, as well as in the divorce petition, the alleged paramour of petitioner-wife herein and respondent No.1 in the divorce petition for the purpose of adjudication of the lis, has been allowed. Mr. Kunal Dawar, learned counsel appearing on behalf of the petitioner submitted that the respondent No.1-husband has filed the divorce petition under Section 13 of the Hindu Marriage Act seeking divorce on two counts namely (i) cruelty and (ii) adultery, by impleading Sandeep Mohan Razdan, the alleged paramour as respondent No.2. Respondent No.2 appeared and filed the written statement and the divorce petition continued to proceed as per the issues framed in accordance with law. The respondent No.1-petitioner's evidence was closed on 19.12.2016. However, when the matter was posted for the respondents' evidence i.e. petitioner-wife herein and respondent No.2, both the parties filed their respective affidavit but the alleged paramour prayed that he would cross-examine the petitioner-wife.

(2.) I have heard learned counsel for the petitioner and appraised the paper book. The facts narrated by Mr. Kunal Daward as well as the facts emanated from the revision petition and the grounds taken in the divorce petition, much less, the impleadment of respondent No.2 are not in dispute. The only question which has to be considered is whether the application (Annexure P-4) at the instance of the husband for summoning respondent No.2, who had proceeded ex parte on 13.03.2018 was maintainable or not. Order 16 Rule 21 of the Code of Civil Procedure envisages the said position. For the sake of brevity the same is reproduced herein below:-

(3.) It is a matter of record that respondent No.2 had filed affidavit in examination-in-chief but the cross-examination was not conducted at the instance of the husband as he wanted to cross-examine the wife. The crossexamination of the wife was closed on 22.02.2018. The argument of Mr. Dawar that the trial Court could not have permitted for summoning the witness in the absence of any rebuttal issue is wholly misplaced, as the husband was expecting that respondent No.2 would now appear for crossexamination but to his bad luck, he proceeded ex parte. It would have been a collusion between the husband and respondent No.2 but I would be refraining myself from commenting upon the aforementioned fact as it would be a matter of evidence but the fact of the matter is that the Court has rightly permitted the petitioner-husband in the divorce petition to summon the witness as there are certain documents referred to in the application to be confronted to respondent No.2.