No Adverse Inference For Refusing Handwriting Sample If Court Doesn't Disclose Invocation Of S.73 Evidence Act: Delhi High Court

The Delhi High Court has held that no adverse inference can be drawn against a party for refusing to provide a handwriting sample, if the Court has not disclosed that such sample is being sought for comparison under Section 73 of the Indian Evidence Act, 1872.

A Division Bench of Justices Vivek Chaudhary and Renu Bhatnagar made the observation while setting aside a divorce decree granted by a Family Court on the ground of cruelty.

The appellant-wife had allegedly thrown a paper/slip in the matrimonial house which contained a list of whimsical demands that she had asked from the respondent-husband.

The Family Court directed the parties to write certain lines without informing them that the exercise was being undertaken for the purpose of comparing handwriting under Section 73 of the Evidence Act.

As the appellant was reluctant to give her handwriting, the Family Court drew an adverse inference against her and concluded that the list was authored by the wife.

Disapproving this approach, the High Court held that such an exercise violated the principles of natural justice and procedural fairness. It observed that the invocation of Section 73 requires transparency and that parties must be made aware of the purpose for which their handwriting is being obtained, particularly when such material may be used to draw conclusions against them.

“Family Court had nowhere mentioned to the parties before taking their handwriting that the order is being passed in exercise of powers conferred under Section 73 of the Evidence Act nor the learned Court below disclosed the reason behind asking the parties for their handwriting. In this scenario, we find that the hesitant behavior of the appellant in handing over her handwritten note is fairly natural and nor the said reluctance, in the absence of expert opinion, be sufficient to conclude that she had written the words in the paper/slip containing the list of demands…” it said.

The Court clarified that the exercise of Section 73 requires awareness of the parties as a pre-requisite for the reasons of procedural fairness.

“The conduct of the Court, at the end of hearing, to exercise power under Section 73 of the Evidence Act, without informing the parties and giving them an opportunity of assistance of experts is more an attempt to support the view taken by the Court, instead of a fair procedure being adopted. Further, raising an adverse inference against a party, on account of her resistance for giving her handwriting, without informing her that the same will be used by the Court for comparison purposes, is against the principles of natural and fair justice and cannot be sustained,” it added.

The Court ultimately set aside the divorce decree, finding that the Family Court had erred in its appreciation of evidence and in its application of legal principles governing cruelty under matrimonial law.

Appearance: Mr. S.C. Singhal and Mr. Parth Mahajan, Advs. for Appellant; Mr. Archit Mishra, Mr. Ayush Anand, Mr. Giriraj Singhal, Advs. for Respondent

Case title: UA v. IPA

Case no.: MAT.APP. 6/2012

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