The court may permit evidence to be recorded through a commission or another authorised arrangement when a witness cannot travel because of sickness or infirmity. Apply before the evidence date with material explaining the difficulty and why the witness's evidence matters. Age alone does not automatically excuse attendance or make an informal recorded statement a substitute for evidence.
What does the CPC permit for an unwell witness?
Order XXVI Rule 1 allows a commission to examine a person within the court's local jurisdiction who is exempt from attendance under the Code or unable to attend because of sickness or infirmity. Its explanation permits the court to accept an appropriate medical certificate as evidence of that difficulty without calling the doctor merely to prove it.
Other provisions address witnesses outside the court's local limits or outside India. The witness's location therefore matters. Section 10 of the Family Courts Act and the applicable matrimonial statute connect civil proceedings with the relevant procedure, subject to their qualifications and local rules.
Do not ask for a home examination simply because it is more convenient. Explain the actual obstacle and propose an arrangement that allows reliable evidence and fair participation by the other side.
What should the medical information say?
It should describe why travel or ordinary court attendance is impracticable, whether the difficulty is temporary and what conditions would allow the witness to give evidence. A document that only records the person's age or diagnosis may not answer those practical questions.
For example, the court may need to know whether the witness can sit for a limited period, requires breaks or is able to understand and answer questions. Ask the medical professional to state what they can support. Do not request an exaggerated certificate merely to avoid attendance.
If the witness's condition changes, update the court. An assessment from a previous hospital admission may no longer describe their present ability. The application should use current information where available.
How do I show that this witness is necessary?
Identify the facts the witness personally knows and how those facts relate to the pleadings. A relative who heard about events from someone else may not provide the same evidence as a person who was present. Explain why the proposed examination assists the case.
List the documents the witness needs to identify or explain. If the original document is in court custody, ask how it will be made available during the authorised examination. Do not assume a witness can authenticate an unreadable photograph of a document sent informally on the day.
Where several witnesses can prove the same fact, discuss whether this particular examination remains necessary. The court should see a reasoned request, not an attempt to add procedural expense without evidentiary value.
Will the other side still be able to ask questions?
An authorised examination should preserve the opportunity to test the evidence through the applicable procedure. A commission is not a way to give an unchallengeable family statement. Ask the order to address participation, documents, objections, recording and return of the evidence.
Section 16 of the Family Courts Act permits evidence of a formal character by affidavit, but also provides for summoning and examining the person in the circumstances stated there. Do not treat an affidavit as a universal substitute for a witness whose substantive account is disputed.
If video participation is proposed, check the relevant court rules and directions. Equipment, identity verification, absence of coaching and access to documents need attention. A private video call arranged by the family is not automatically court evidence.
Who pays and what should the application request?
The court may direct expenses for a commission under the applicable procedure. Obtain the proposed costs and directions rather than promising the witness that the process is free or that the other spouse must pay. The final allocation can depend on the order and circumstances.
The application should identify the witness, location, relevant facts, medical obstacle, proposed method, documents and timing. Ask for directions early enough to avoid wasting a scheduled evidence date. If the difficulty arose suddenly, explain the sequence and provide the available support promptly.
See Family Court procedure and evidence in divorce cases for context. The family-law information page covers the wider process. The immediate decision is how to record this witness's useful evidence fairly despite the documented travel obstacle.