Jitender Mohan vs Anjali Mohan

M.L. Mehta, J.—This petition under Article 227 of the Constitution assails order dated 14.05.2012 whereby an application u/s 45 of Indian Evidence Act, filed by the petitioner, was dismissed. The petitioner had filed a divorce petition u/s 13(1) (ia) of Hindu Marriage Act being H.M.A. No. 304/2008 against his wife (the respondent), which is pending in the Court of Additional District Judge (ADJ). In the said petition, an application was filed by the petitioner u/s 45 of Indian Evidence Act with the following prayers:

(a) to constitute a panel of medical expert(s) having requisite expertise in the particular field of medicine who can give expert opinion to the medical condition of the respondent certifying as to whether she is capable of smelling anything or not;

(b) to direct RW-1, i.e. respondent herself, to appear before a medical board or medical expert as constituted/ appointed by the court for medical examination and to submit herself and to cooperate for the required tests as may be prescribed by the medical board/panel so constituted by the court; and

(c) to pass such further order(s) in the interest of justice and in favour of the petitioner as this court may deem proper in the facts of the case.

The application came to be dismissed by the learned ADJ observing that the court cannot help the parties to litigation to collect their evidence. This order is assailed on the ground that the respondent, who is the wife of the petitioner, in her statement had stated that when she entered into the kitchen and lighten the gas, it suddenly caught fire and further that she found the door of the kitchen locked from outside and she was not able to smell anything. Referring to this part of her statement, the petitioner had prayed for examination of his wife (the respondent), by a Medical Board.

The petitioner seems to be making mileage referring to a part of cross examination of his wife. The provisions contained u/s 45 of Indian Evidence Act cannot be invoked for contradicting a part of the testimony of any witness. The testimony of the respondent was to be read as a whole and not in isolation and its evidentiary value ultimately would be weighed by the court at appropriate stage. The learned ADJ rightly relied upon the case of Padam Sen and Another Vs. The State of Uttar Pradesh, that it was not the business of the Court to collect evidence on behalf of the parties to the litigation.

The case pending before the trial court is at the stage of final arguments and the application having not maintainable, was rightly dismissed by the learned ADJ. I do not see any reason to interfere with the impugned order as it does not have any illegality or infirmity. The petition has no merit and is hereby dismissed.