The Delhi High Court on Monday held that a judge cannot compare handwriting samples of parties without informing them or giving them an opportunity to respond.

A Bench of Justices Vivek Chaudhary and Renu Bhatnagar said that a family court had erred in comparing the wife’s handwriting on its own under Section 73 of the Evidence Act without disclosing its intent or allowing expert assistance.

"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 Bench accordingly set aside a 2011 divorce decree granted by the Rohini Family Court on the ground of cruelty.

The case arose from a matrimonial dispute in which the husband had alleged cruelty and relied on a handwritten slip that was said to contain demands made by the wife.

The family court had directed both parties to write sample lines and, on its own comparison, concluded that the document was written by the wife. It also drew an adverse inference from her hesitation in providing handwriting samples.

The High Court found this approach to be “critically flawed.” It noted that the family court had not informed the parties that the handwriting samples were being taken for comparison, nor had it sought expert opinion.

“The exercise of this provision requires awareness of the parties as a pre-requisite for procedural fairness…the comparison is required to be undertaken sparingly,” the Court observed.

It further noted that courts are free to supplement such comparison with expert opinion, but in the present case, no such effort was made. The High Court said that the family court’s approach appeared to support a pre-determined conclusion rather than arrive at the truth through a fair process.

In view of these findings, the Bench held that the reliance placed on the handwritten document was legally untenable.

The Court also found that other allegations of cruelty were unsupported by evidence and that the burden of proof had been wrongly shifted.

Accordingly, the High Court allowed the appeal and set aside the divorce decree granted under Section 13(1)(ia) of the Hindu Marriage Act.

The appellant-wife was represented by Advocates SC Singhal and Parth Mahajan.

The respondent-husband was represented by Advocates Archit Mishra, Ayush Anand and Giriraj Singhal.