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Bhawana Sharma vs Shyam Sunder Sharma on 10 August, 2018

$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CM(M) 911/2018

BHAWANA SHARMA ….. Petitioner
Through: Petitioner-in-person.

Versus

SHYAM SUNDER SHARMA ….. Respondent
Through: None.
CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER

% 10.08.2018

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 27 th 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 Page 1 of 4
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 19 th
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 17 th 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
CM(M) 911/2018 Page 2 of 4
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 17 th
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-in-
law 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.

CM(M) 911/2018 Page 3 of 4

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..

CM(M) 911/2018 Page 4 of 4

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