Vembu Divorce: Madras HC Allows Zoho Witness Testimony On Wife’s Directly Filed US Request, But Limits Documents

The applicant wife sought execution in India of a Letter of Request issued by the Superior Court of California in matrimonial proceedings concerning dissolution of marriage and division of property.

The request sought oral evidence from respondents 2–9 and documents from them, and production of documents alone from Zoho Corporation Private Limited (ZCPL), respondent 10. The evidence related principally to the parties’ interests in ZCPL and associated transactions

The wife presented the Letter directly to the Madras High Court and applied under Section 78 and Order XXVI CPC for a Commissioner, powers to examine witnesses and obtain documents, and direct transmission of the evidence to the California Court.

Several proposed witnesses and ZCPL sought rejection of the applications, arguing, among other things, that the Letter had not been routed through India’s Central Authority, that the request amounted to prohibited pre-trial discovery, and that the document demands were overbroad

The Court framed five points, including the maintainability of the applications, the witnesses’ objections and the participation of foreign counsel, the effect of India’s Article 23 declaration, and the appropriate procedure for executing and returning the evidence

Section 78 CPC, read with Order XXVI Rules 19–22, authorises a High Court to issue and execute a commission on a foreign court’s Letter of Request where the foreign proceeding is civil and the witness resides within the High Court’s appellate jurisdiction; Rule 19(2)(c) permits a party to produce the Letter directly before the High Court.

Articles 2 and 27 of the Hague Evidence Convention govern transmission but permit alternative channels allowed by a Contracting State’s internal law; Articles 3, 9–13 and 23 respectively address the contents of a request, execution procedure, refusal, partial execution and the restriction on pre-trial document discovery.

India’s Article 23 declaration bars demands for documents that are not particular documents specified in the Letter and likely to be in the recipient’s possession, custody or power; it does not, by its terms, bar oral evidence.

Under Order XXVI Rule 17, witnesses may be summoned and required to produce documents, while Rules 17 and 22 require the executed commission and evidence to be returned to the High Court for onward transmission through the Central Government.

The Court also applied Article 11 and Order XXVI Rule 16-A to preserve applicable privileges; privacy principles in *K.S. Puttaswamy v. Union of India*; and *Bar Council of India v. A.K. Balaji* to hold that foreign counsel could not conduct the examination in India.

Order III Rule 2 CPC and Order II Rule 7 of the Original Side Rules governed recognition of the wife’s power agent.

The Court held that the wife’s direct presentation of the Letter was permitted by Order XXVI Rule 19(2)(c), consistently with Article 27; transmission through the Ministry was therefore not the exclusive route. The Ministry’s return of the papers raised procedural issues only and did not amount to a decision rejecting the request.

The subpoenas issued in California had no force in India: witnesses would instead be summoned under Indian procedure.

The Court rejected threshold dismissal because none of the asserted grounds—including lack of Central Authority transmission, the Ministry’s communication, alleged suppression, lack of apostille or non-service of the foreign subpoenas—made the applications legally untenable.

The witnesses’ status as non-parties did not exempt them from a lawful Indian summons. The Court preserved Indian-law privileges and excluded the witnesses’ individual tax returns as disproportionate to the stated purpose.

Questions concerning share ownership and consideration could proceed within the specified topics, without any finding that a transaction was benami.

Applying Article 23, the Court scrutinised the requests item by item: oral examination was not barred, but document demands framed as broad classes were declined. It allowed only specified documents that met the particularity test, including limited categories from Jai Anand and ZCPL.

Foreign counsel could attend and advise, but examination and cross-examination had to be conducted by advocates enrolled in India.

Because most witnesses resided outside the High Court’s ordinary original civil jurisdiction, the Family Court, Chengalpattu, was appointed to execute the commission; the evidence had to return through the High Court and Central Government, not directly to California.

It partly allowed A.Nos.533–535 of 2026: respondents 2–9 were to be examined only on the numbered topics, and only the specified documents identified in the order could be required from Jai Anand and ZCPL; the remaining document requests, including individual tax returns, were declined.

The Family Court, Chengalpattu, was directed to execute the commission under the stated safeguards, with examination conducted by Indian-enrolled advocates and the completed record returned through the High Court and Central Government. Direct transmission to the California Court was refused.

The effect of any further examination under the husband’s Letter of Request was left to the competent Court, subject to any subsisting order in the pending proceedings.

The stay was vacated insofar as the wife’s request was concerned, and there was no order as to costs.