CR No.1639 o”
1. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1639 of 2013 Date of Decision:August 05, 2013.
MRS.Satwant Kaur ....Petitioner Versus Mr.Sukhwinder Singh Bawa .....Respondent CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH 1 Whether reporters of the local papers may be allowed to see the judgment?.
2) To be referred to the Reporters or not?.
3) Whether the judgment should be reported in the Digest?.
Present: Mr.Arvind Kashyap, Advocate, for the petitioner.
Mr.Raman Mahajan, Advocate, for the respondent.
**** PARAMJEET SINGH, J.
Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 06.02.2013 (Annexure P-1) passed by the learned Additional District Judge, Kumar Parveen 2013.08.12 12:53 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1639 o”
2. Chandigarh whereby application under Order 32 Rule 15 of the CPC has been dismissed and further for setting aside the order dated 27.02.2013 (Annexure P-2) passed by the learned Additional District Judge, Chandigarh whereby evidence of the petitioner-wife has been closed by Court order.
Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that the respondent-petitioner filed petition under Section 13 of the Hindu Marriage Act, 1955 ( in short “the Act”.) against the petitioner-respondent.
It is averred in the petition that the marriage between the parties was solemnized on 15.01.1995 according to Sikh rites and ceremonies.
From the said wedlock, two children i.e.Sejal Bawa (daughter) and Raj Angad Bawa (son) have born.
The respondent-husband has filed divorce petition seeking divorce on the ground of mental cruelty.
In the said petition, the present petitioner filed application dated 27.11.2012 under Order 32 Rule 15 of the CPC for initiating proceedings in accordance with the provisions of the said Order.
In reply to the said application, the respondent alleged that the petitioner was using delaying tactics and she is of sound mind.
After considering the facts, the learned Additional District Judge, Chandigarh dismissed the said application vide impugned order dated 6.2.2013 by observing that the petitioner was adopting tactics to delay the matter.
Since the petitioner is of sound mind and permission under Order 32 Rule 15 of CPC was not given, yet she could not be produced in Court, therefore, on 27.02.2013, the learned trial Court closed the Kumar Parveen 2013.08.12 12:53 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1639 o”
3. evidence of the present petitioner by order.
Hence, this revision.
I have heard learned counsel for the parties and perused the record.
Let me fiRs.decide regarding the impugned order dated 06.02.2013 (AnnexureP-1) passed by the learned Additional District Judge, Chandigarh.
Learned counsel for the petitioner-wife has contended that the petitioner is suffering from mental infirmity and she is getting treatment for the said ailment.
The learned counsel has further contended that the father of petitioner also moved an application before the learned Chief Judicial Magistrate, Chandigarh with the request that her daughter be sent to GMCH, Sector 32, Chandigarh as she is patient of psychiatry.
The learned counsel has further contended that father of the petitioner is ready to get her examined from PGI, Chandigarh to prove her mental condition.
The learned counsel has further contended that she is taking Homoeopathic treatment regarding her mental health.
There is cogent evidence on the file before the learned Additional District Judge, Chandigarh that she is mentally ill.
Per contra, learned counsel for the respondent has vehemently opposed the contentions of learned counsel for the petitioner and supported the impugned order.
The learned counsel has further contended that vide order of the learned Chief Judicial Magistrate, Chandigarh, she was afforded opportunity to get herself examined from GMCH, Sector 32, Chandigarh, but she did not appear before the Kumar Parveen 2013.08.12 12:53 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1639 o”
4. concerned doctor for her medical examination to ascertain about her mental illness.
She has allegedly taken treatment only from some Homeopathic doctor.
The learned counsel has further contended that originally, the petitioner-Satwant Kaur had appeared in person before the trial Court and after lapse of long period, the application under Order 32 Rule 15 of the CPC was moved which is mala fide and just to prolong the proceedings.
I have considered the rival contentions of learned counsel for the parties and perused the record and the impugned order.
Admittedly, the learned Chief Judicial Magistrate,Chandigarh directed that the petitioner be got examined at GMCH, Sector-32, Chandigarh, but instead of appearing there, she has produced on record only prescription slip issued by a Homoeopathic doctor.
Instead of taking treatment at a medical college where competent doctors are available, she has preferred to take treatment from Dr.
Jatinder S.
Sharma (Md.(Homoeo) at Jagadhari.
The trial Court after appreciating the evidence brought on record has come to the conclusion that as per the homoeopathic slip, she is suffering from depression and has been advised rest.
From the said certificate, inference cannot be drawn that she is suffering from mental disorder.
The contention of the petitioner with regard to going into depression owing to absence of children is also not sustainable, as the visiting rights have been granted to her by the Hon'ble Supreme Court.
There is an admission also that she had gone to meet the children at Gurgaon and met her daughter.
The petitioner used Kumar Parveen 2013.08.12 12:53 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1639 o”
5. to have telephonic conversation also with her daughter.
In view of the above, this Court is of the view that she has intentionally avoided her medical examination before the GHCH, Sector- 32, Chandigarh to prove her mental illness.
In the absence of medical evidence, it is crystal clear that the trial Court has rightly come to the conclusion that such an application cannot be allowed and the same has been rightly dismissed vide impugned order dated 6.2.2013 (Annexure P-1).Consequently, the same is upheld.
not I would deal with the impugned order dated 27.2.2013 (Annexure P-2).Learned counsel for the petitioner has vehemently contended that when the petitioner is of unsound mind, then the number of opportunities to cross-examine her are irrelevant.
The learned counsel has further contended that in the interest of justice, one opportunity to the petitioner may be granted to lead evidence.
Per contra, learned counsel for the respondent has contended that the petitioner has already availed more than eight effective opportunities to conclude her evidence and on her failure, the trial Court has rightly closed her evidence after affording last and final opportunities.
The petitioner is using dilatory tactics by moving application one after the other.
There is no illegality in the impugned order (Annexure P-2) passed by the trial Court.
I have considered the rival contentions of learned counsel for the parties.
Kumar Parveen 2013.08.12 12:53 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.1639 o”
6. In the peculiar circumstances of the present case, this Court is of the considered opinion that ends of justice would be met if one effective opportunity is given to the petitioner-respondent for leading evidence.
Since the petitioner was considering her depression as equivalent to mental illness and this is a matrimonial dispute, the Court should take a lenient view in such a case.
In view of this, the impugned order (Annexure P-2) is liable to be set aside and it is directed that trial Court will give one effective opportunity to the petitioner at her own risk and responsibility to lead her evidence.
Ordered accordingly.
However, the respondent-petitioner shall also be given an opportunity to adduce evidence in rebuttal, if he so desires.
For the reasons stated above, the impugned order dated 27.2.2013 (Annexure P-2) is set aside.
The learned counsel for the parties state that the case is fixed for 16.08.2013, on that date, the trial Court shall grant one opportunity to the petitioner to lead her entire evidence on the date to be fixed by the trial Court.
The date shall not be longer than one month.
The revision petition is disposed of in the aforementioned terMs.(Paramjeet Singh) Judge August 05, 2013 parveen kumar Kumar Parveen 2013.08.12 12:53 I attest to the accuracy and integrity of this document High Court, Chandigarh