Family Court Judge Secretly Compared Handwriting Without Telling Wife, Then Punished Her Hesitation: Delhi High Court Quashes Divorce Decree

"So that the parties do not come to know about the real intention of mine, I asked the parties to give some lines in writing about children" — Delhi High Court set aside a divorce decree, holding that a Family Court judge had committed a grave violation of natural justice by covertly invoking Section 73 of the Evidence Act to compare a wife's handwriting — without disclosing his purpose — and then drawing an adverse inference against her for being hesitant to cooperate.

A Division Bench of Justice Vivek Chaudhary and Justice Renu Bhatnagar held that such conduct was more an attempt to support a view already formed than a fair procedure adopted to reach the truth.

What the Judge Did

At the conclusion of final arguments in a divorce petition, the Family Court judge asked both parties to write a few lines on a piece of paper — ostensibly about their children. He did not tell them why. He did not mention Section 73 of the Evidence Act. He did not inform them that their handwriting would be compared with a disputed slip of paper containing a list of demands — a document the husband had produced as evidence of cruelty by the wife. After obtaining the handwriting in this manner, the judge compared it himself with the disputed slip and concluded that the wife had written it. He then drew an additional adverse inference against her because she had been hesitant to hand over her writing — noting in his own judgment that she had "even demanded it back" citing advice from a Supreme Court advocate.

The judge's own words, recorded in the impugned order, were extraordinary enough to merit extraction by the Division Bench: "So that the parties do not come to know about the real intention of mine, I asked the parties to give some lines in writing about children."

Court's Observations

The Delhi High Court found this procedure to be fundamentally and fatally flawed on every level. Section 73 of the Evidence Act empowers a Court to direct any person present to write words or figures for comparison purposes. But this power carries with it the essential requirement of procedural fairness — the parties must know what is happening and why.

"The exercise of this provision requires awareness of the parties as a prerequisite for the reasons of procedural fairness. The comparison under Section 73 of the Evidence Act is required to be undertaken sparingly, especially since the document in this regard is of substantial consequence."

The Division Bench held that the power under Section 73 is not a tool for a judge to secretly gather evidence after arguments have concluded in order to fortify a conclusion already arrived at. The Court must supplement its own comparison with expert opinion where the document is of substantial consequence. In this case, the husband had not even taken steps to prove the disputed slip through an expert handwriting report. The judge stepped in at the last moment, conducted a covert exercise, and used it against the wife.

"Such power is to be exercised by the Court to fairly reach the truth, rather than to give support to the view taken by the Court. 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."

The Court further held that penalising the wife for her hesitation was equally impermissible. She was never told that her handwriting would be used for comparison. Her reluctance to hand over the writing — including her invocation of legal advice — was entirely natural in the circumstances. "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."

The divorce decree was set aside. The respondent's subsequent remarriage, the Court held, was no bar to correcting a legally erroneous judgment.

Date of Decision: April 13, 2026