P&H High Court Dismisses Husband's Plea Seeking Appointment Of Local Commissioner In Divorce Case For Wife's Medical Test

The Punjab and Haryana High Court has rejected a husband's petition seeking appointment of a Local Commissioner in divorce proceedings for getting expert opinion with regard to an illness of his wife.

Justice Manjari Nehru Kaul said 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 medical test upon the respondent without her consent as it would without a doubt amount to violation of her right to privacy." 

The court made the observations while dismissing the revision petition filed by the petitioner-husband. The Family Court in Jalandhar had dismissed his application in July 2022. The petitioner then filed the revision under Article 227 of the Constitution against the order passed by the Additional Principal Judge.

In relation to the case filed under Section 13 of the Hindu Marriage Act, the petitioner had argued that his wife was suffering from Rheumatoid Arthritis even prior to their marriage and concealment of the health condition amounted to cruelty.

His argument was that to prove the fact she had the illness even prior to the marriage, the appointment of the Local Commissioner was essential for an expert opinion regarding the origin or history of the disease. The same would be necessary for the just and effective adjudication of the application under HMA, his counsel argued.

Regarding the maintainability of the petition, the counsel contended that the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India was wider than the revisional jurisdiction under Section 115 of the Civil Procedure Code, and therefore, the writ was maintainable. Reliance was placed on the Supreme Court decisions in K.P. Natarajan and Others v. Muthalammal and Others, SLP (C) 2492 of 2021 and Radhey Shyam and Others v. Chhabi Nath and Others, Civil Appeal No. 2548 of 2009.

It was argued 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."

Justice Kaul placed reliance on the decision in Pritam Singh v. Sunder Lal, 1990 (2) PLR 191, where it was held that a revision against an order refusing to appoint a Local Commissioner did not lie as it was the discretion of the Court to appoint a commissioner and 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 learned counsel for the petitioner would not come to his rescue as in the present case, the impugned 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." 

Dismissing the plea, the court said the petition is without merits and that it is not inclined to invoke its revisional jurisdiction under Article 227 of the Constitution of India.

Case Title: Vishal Vashisht v. Nitasha Sharma

Citation: CR No. 4408 of 2022 (O&M)

Coram: Justice Manjari Nehru Kaul

Citation: 2022 LiveLaw (PH) 298 

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