Punjab and Haryana High Court dismisses petition seeking appointment of commissioner in a divorce case

The Punjab and Haryana High Court has dismissed a petition seeking appointment of local commissioner in divorce case for wife's medical test.

A Single Bench of Justice Justice Manjari Nehru Kaul passed this order while hearing a petition filed by Vishal Vashisht.

Prayer in the petition filed under Article 227 of the Constitution of India is for setting aside the order dated 28.07.2022 vide which the Additional Principal Judge (Family Court), Jalandhar dismissed the application of the petitioner for appointment of a Local Commissioner for getting the expert opinion with respect to the disease, i.e, Rheumatoid Arthritis of the respondent.

Counsel for the petitioner while addressing arguments on the question of maintainability of the petition, submitted that the supervisory jurisdiction of the Court under Article 227 of the Constitution of India is wider than the revisional jurisdiction under Section 115 of the Civil Procedure Code, therefore, the petition would be maintainable.

On merits of the case, counsel for the petitioner submitted that the impugned order suffers from patent illegality and thus, deserves to be set aside.

He further submitted that the petitioner in his petition filed under Section 13 of the Hindu Marriage Act has categorically pleaded that the respondent was suffering from Rheumatoid Arthritis even prior to their marriage. Hence, the non-disclosure and concealment of her state of health and illness amounted to cruelty.

He also submitted that in order to prove the fact that the respondent had been suffering from the said disease, even prior to the solemnization of their marriage, the appointment of the Local Commissioner for giving expert opinion regarding the origin/history of the disease would be necessary for the just and effective adjudication of the petition filed under Section 13 of the Hindu Marriage Act.

Counsel for the petitioner said that the petitioner has a right to prove his case by leading cogent evidence and hence, the appointment of the Local Commissioner would be necessary, which fact has been erroneously ignored by the learned Family Court while passing the impugned order.

"It would be pertinent to notice that the Division Bench of the Court in “Pritam Singh vs Sunder Lal”, 1990 (2) PLR 191, has held that a revision against an order refusing to appoint a Local Commissioner would not lie as it is the discretion of the Court to appoint a commissioner and in case the Court refuses to appoint a commission, then, no right of any party can be said to have been prejudiced.

The case laws relied upon by the counsel for the petitioner would not come to his rescue as in the case, the order refusing the appointment of the Local Commissioner, neither any issue has been decided, nor the rights of the parties adjudicated. Hence, the impugned order is not revisable", the Court observed.

"Even otherwise, it is trite law that a party cannot be allowed to collect evidence through the Court. Each party has to lead evidence in support of its case and it cannot be allowed to lean on the Courts for the same. Furthermore, the Local Commissioner cannot be permitted to perform a medical test upon the respondent without her consent as it would without a doubt amount to violation of her right to privacy.

As a sequel to the above, the Court is not inclined to invoke its revisional jurisdiction under Article 227 of the Constitution of India", the Court said while dismissing the petition.