Civil Revision No.5315 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5315 of 2011 (O&M) Date of Decision:-1.9.2011 Sanjay Sarin ...Petitioner Versus Payal Sarin ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Rajiv Kataria, Advocate for the petitioner. M ehinder S ingh S ullar , J . (Oral) The crux of the facts, culminating in the commencement, relevant for the limited purpose of deciding the instant revision petition and emanating from the record, is that respondent-wife Payal Sarin filed a petition against her husband Sanjay Sarin petitioner, for dissolution of their marriage by a decree of divorce, invoking the provisions of section 13 of the Hindu Marriage Act, 1955 (hereinafter to be referred as “the Act”) at Chandigarh. The petitioner-husband has also filed a petition for restitution of conjugal rights under section 9 of the Act against her in the Court of Additional District Judge, Tis Hazari Courts, Delhi. 2. The respondent-wife moved a transfer application and the Hon'ble Supreme Court transferred the HMA case pending in Tis Hazari Courts, Delhi to the District Court, Chandigarh for trial alongwith the divorce petition, by means of order dated 15.11.2010, which, in substance, is (para 3) as under:- “Accordingly, these transfer petitions are allowed and case H.M.A.no.169/2007 (now numbered 25/2010) and Contempt Petition No.M- 09/2010 titled as “Sanjay Sarin vs. Payal Sarin” pending before Additional District Judge, Tis Hazari Courts, Delhi are ordered to be transferred to the District Court, Chandigarh. The District Court at Chandigarh to take up and dispose of the transferred cases alongwith the divorce petition (H.M.A.Petition No.339 of 2007) filed by the petitioner-wife pending on his file. Civil Revision No.5315 of 2011 (O&M) -2- It is stated that the divorce petition is at the stage of arguments. In view of it, we request the court at Chandigarh to expedite the hearing and trial of the case that is being transferred so that both cases can be disposed of by a common order. This will not come in the way of the matter being proceeded with in mediation.” 3. Thereafter the transfer, the cases were not decided by the trial Judge expeditiously. In the wake of Civil Revision bearing No.4421 of 2011 filed by the respondent-wife, keeping in view the spirit of order of Hon'ble Apex Court, ages of the parties, nature of litigation, future of their children and totality of other facts & circumstances, this Court directed the trial Court to complete the trial of the aforesaid matrimonial cases within a period of four months, by way of order dated 18.8.2011. 4. It is not a matter of dispute that the petitioner-husband moved an application under Order 14 Rule 5 CPC for recasting of issues and issue No.1 was re-casted and onus to prove this issue was shifted upon the respondent-wife, vide order dated 16.2.2011 and case was slated for her (respondent-wife) evidence by the trial Court. The evidence of respondent-wife was closed on 3.6.2011 and case was fixed for 28.7.2011 for evidence of petitioner-husband. Instead of concluding the evidence and in order to delay the disposal of the cases, the petitioner moved the applications (Annexures P13 and P15) for re-summoning the respondent-wife for further cross-examination and to play the video CD. 5. The respondent-wife refuted the prayer of the petitioner-husband and filed the reply (Annexure P14) stoutly denying the allegations contained in the indicated application and prayed for its dismissal. 6. The trial Judge dismissed the applications of the petitioner-husband, by virtue of impugned order dated 23.8.2011 (Annexure P16). 7. Aggrieved by the decision of the trial Judge, the petitioner-husband filed the instant revision petition, invoking the provisions of Article 227 of the Constitution of India. 8. Having heard the learned counsel for the petitioner-husband, having Civil Revision No.5315 of 2011 (O&M) -3- gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the present revision petition. 9. Ex facie, the argument of learned counsel that since the further cross- examination of respondent-wife (RW1) is essential to confront her with the video CD, so, the trial Court committed a mistake in dismissing the applications of the petitioner-husband, sans merit. 10. As is evident from the record and the impugned order (Annexure P16) that the petitioner-husband has considerably delayed the disposal of matrimonial dispute on one pretext or the other. Having recasting the issues, the examination-in-chief of respondent-wife (RW1) was recorded on 14.3.2011. The case was adjourned for cross-examination at his request. On 3.6.2011, the respondent-wife was cross-examined at length, her evidence was closed and the case was adjourned to 28.7.2011 for evidence of petitioner-husband, but on that day, no evidence was produced and the case was again adjourned to 16.8.2011 at his request. 11. Instead of concluding the evidence, the petitioner-husband moved the applications (Annexures P13 and P15) for re-summoning the respondent-wife (RW1) for further cross-examination and to play the video CD. What is not disputed here is that the indicated Video CD/photographs pertain to the incident of 1.7.2009, while the statement of respondent-wife was recorded on 14.3.2011 and concluded on 3.6.2011 after lengthy cross-examination. That means, the alleged CD/photographs were very much in existence when the respondent-wife (RW1) was cross-examined at length. The witness cannot be re-summoned for further cross-examination, in order to fill up the lacunae left in her statement. Such witness cannot be re-summoned in a routine and casual manner and on mere wish of petitioner-husband in a matrimonial dispute. Therefore, there was no occasion to re-summon her for further cross-examination, in the obtaining circumstances of the case. Thus, the trial Judge has rightly negatived the claim of petitioner-husband Civil Revision No.5315 of 2011 (O&M) -4- in this regard, by way of impugned order (Annexure P16), the operative part of which is (para 6) as under:- “While having due regard to the contentions of respective parties and especially a perusal of record of the case reveals that instant petition under Section 9 of the Act for restitution of conjugal rights has been moved at the instance of applicant-petitioner. It is pertinent to mention here that even though instant petition was instituted on 16.03.2007 but issues were framed on 26.11.2009. Lateron in terms of order dated 15th November, 2010 passed in Transfer Petition (Civil) Nos.932-933 of 2010 titled Payal Sarin Versus Sanjay Sarin by the Hon'ble Supreme Court of India, HMA Petition No.169 of 2007 and Contempt Petition No.M-09/2010 titled Sanjay Sarin Versus Payal Sarin pending before Additional District Judge, Tis Hazari Courts, Delhi were ordered to be transferred to the District Court, Chandigarh. Immediately on receipt of case by transfer, application under Order 14 Rule 5 CPC for recasting of issues was moved at the instance of petitioner Sanjay Sarin and after obtaining reply, said application was disposed of. Since in terms of order dated 16.02.2011, issue No.1 was re-casted and onus to prove said issue was shifted upon respondent-wife, thus, case was adjourned for recording evidence of respondent. Even though examination-in-chief of RW-1 Payal Sarin was recorded on 14.03.2011 but thereafter in view of adjournments sought at the instance of applicant-petitioner, lengthy cross-examination of RW-1 Payal Sarin was concluded on 03.06.2011 and the evidence of respondent-wife was also closed on that day and then the case was adjourned to 28.07.2011 for evidence of petitioner (husband) but on that day no evidence was led at the instance of applicant-petitioner and the case was adjourned to 16.08.2011 but on that day instead of leading evidence by petitioner-husband, applications in question were moved. At this juncture, it is relevant to point out here that respondent in her reply to the application in question has categorically contended that she has already been cross-examined at length in respect of her alleged relations with one Gaurav Saini, With regard to incident in question, it is categorical stand of respondent that the said incident dated 01.07.2009 where she was allegedly assaulted by Sukhvinder Kaur, said incident was photographed by applicant-petitioner and his family members and to that effect photographs have already been distributed amongst her relatives to defame her. Respondent has categorically contended in her reply and denied that she was ever hiding her face during the incident in question and infact she was trying to safeguard herself during the assault and also trying to take care of her injuries during the said incident and, thus, at no point of time she had ever tried to hide her identity. In this view of the matter once respondent has taken the stand that video film/photographs in question pertain to incident dated 01.07.2009 and the photographs thereof were already in possession of applicant-petitioner well Civil Revision No.5315 of 2011 (O&M) -5- before her cross-examination which concluded on 03.06.2011, the fact that even in terms of contents of para No.8 of application dated 16.08.2011 for recalling RW-1 Payal Sarin for further cross-examination, said video film/photographs were already in possession of applicant-petitioner and that too well before cross- examination of RW-1 Payal Sarin, thus, keeping in view totality of entire factual position, it can be conveniently held that as RW-1 Payal Sarin has already been cross-examined at length and that too in respect of cause of petitioner at the instance of applicant-petitioner and especially the fact that these applications are being moved just to delay the proceedings of instant petition, there is no need to recall RW-1 Payal Sarin for further cross-examination and hence these applications moved by applicant-petitioner being devoid of merits are dismissed.” 12. Meaning thereby, the trial Judge has rightly dismissed the applications (Annexures P13 and P15) and recorded the cogent grounds in this relevant connection. Such impugned order, containing valid reasons, cannot possibly be set aside, in exercise of limited revisional jurisdiction of this Court under Article 227 of the Constitution of India, unless and until, the same is perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner-husband, so, the impugned order (Annexure P16) deserves to be and is hereby maintained in the obtaining circumstances of the case. 13. No other point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner-husband. 14. In the light of the aforesaid reasons and without commenting further anything on merits, lest, it may prejudice the case of either side during the course of the trial, as there is no merit, therefore, the instant revision petition filed by the petitioner-husband is hereby dismissed as such. 15. Needless to mention that nothing observed here-in-above would reflect in any manner on the merits of the case as the same has been so recorded for a limited purpose of deciding this revision petition. 1.9.2011 (MEHINDER SINGH SULLAR) AS JUDGE