Bhawana Sharma v. Shyam Sunder Sharma

1. This petition under Article 227 of the Constitution of India impugns the order [dated 3rd July, 2018 in HMA No.133/2016 of the Court of Judge, Family Court (West)] of dismissal of the application dated 2nd December, 2016 of the petitioner/wife for recall of the order dated 27th October, 2016 and for re-opening of the evidence of the petitioner/wife.

2. A lady, who claims to be the petitioner/wife, who has filed this petition, in person has been heard.

3. From a perusal of the paper book, it transpires that the respondent/husband, as far back as on 23rd April, 2001, instituted the proceedings, from which this petition arises, for dissolution of his marriage with the petitioner/wife under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955. The impugned order records that the proceedings for dissolution of marriage were at final arguments stage and part arguments CM(M) 911/2018 2018:DHC:5024 had already been heard, when it was pointed out by the counsel for the petitioner/wife that the application dated 2nd December, 2016 for recall of the order dated 27th October, 2016 and for reopening of the evidence of the petitioner/wife was still pending consideration. Accordingly, the said application was considered and dismissed vide the impugned order and the proceedings for dissolution of marriage posted for final arguments on 19th July, 2018.

4. The petitioner/wife appearing in person, on enquiry as to what happened on 19th July, 2018, states that the proceedings are now listed on 17th August, 2018 for the petitioner/wife to submit her written arguments.

5. The application, against dismissal of which this petition has been preferred, was filed pleading that (i) the evidence of the petitioner/wife was closed vide order dated 27th October, 2016; (ii) on 6th May, 2016, on the statement of the petitioner/wife, one opportunity in the interest of justice was given by the Judge, Family Court to the petitioner/wife to summon the record from the concerned authority of Central Bank of India and the proceedings were listed on 15th July, 2016 for the said purpose; (iii) in bail proceedings in FIR No.230/2001 under Sections 498A/406/34 IPC, a direction was issued by this Court on 17th September, 2001 for search of the Locker No.181 in the Central Bank of India, Gole Market, New Delhi, where the jewellery of the petitioner/wife was placed; (iv) immediately after the said direction was issued on 17th September, 2001, all the jewellery articles of the petitioner/wife were removed by the mother-in-law and sister-in-law of the petitioner/wife and ultimately when the locker was opened in compliance of the directions, it was found empty and no jewellery was found therein; (v) though on an earlier occasion record had been summoned from Central Bank of India about operation of the locker immediately after 17th September, 2001 but the same was reported to be not available; (vi) the counsel for the petitioner/wife could not appear when the witnesses from Central Bank of India appeared; and, (vii) the witness from Central Bank of India was required to be examined further.

6. The application aforesaid has been dismissed vide the impugned order, reasoning (a) that the argument of the counsel for the petitioner/wife was that the petitioner/wife required to examine the aforesaid record and demonstrate operation of the locker aforesaid by her mother-in-law and by her sister-inlaw prior to 31st October, 2001, “because the same constituted an act of cruelty committed by the respondent/husband on the petitioner/wife”; that thus, the examination of the said witness was essential; (b) however, the statement of the Assistant Manager and Chief Project Manager of the Central Bank of India had already been recorded in this regard and the application was not maintainable; (c) that the petitioner/wife had examined the Assistant Manager, Deputy Manager and Senior Manager of Central Bank of India on 17th February, 2012, 17th December, 2015 and 27th October, 2016 respectively and all the said witnesses had stated that the bank record for the relevant period, being more than eight years old, was not traceable and as per rules, was required to be destroyed; (d) that it was not the claim of the petitioner/wife that the witnesses from Central Bank of India who had been examined, had not deposed correctly; and, (e) thus, no purpose would be served in reopening the evidence.

7. Though one of the several acts of cruelty pleaded by the respondent/husband in the petition for dissolution of marriage certainly is, of the petitioner/wife having walked out of her matrimonial home along with all her belongings but what is unfathomable is why the petitioner/wife would want to lead evidence, as sought, to prove cruelty on the part of the respondent/husband. What is for determination before the Judge, Family Court is, whether the petitioner/wife has meted out any cruelty to the respondent/husband and not whether the respondent/husband has meted out cruelty to the petitioner/wife. The plaintiff/wife, cannot be permitted to lead evidence, which may be assistance to her in prosecution under Sections 498A/406/34 of IPC of the respondent/husband, in the proceedings under Section 13(1)(i-a) and Section 13(1)(i-b) of the Hindu Marriage Act and for which the evidence sought to be lead is irrelevant.

8. The Judge, Family Court has given cogent reasons for dismissal of the application. Moreover, at the final stage of the proceedings, which are pending for the last 17 years, it is not deemed appropriate otherwise also to interfere.

9. Dismissed.

RAJIV SAHAI ENDLAW, J. AUGUST 10, 2018 bs..