In absence of any urgency, matter cannot be referred to a Commissioner for recording of evidence without the consent of parties

This was held by the Hon’ble High Court of New Delhi in the matter of Savita Devi v. Lalit Kumar, CM (M) No. 1203 of 2018, on 3rd October, 2018.


The Petitioner/wife impugns order of the Family Court dated 11.07.2018 wherein, in a petition for divorce filed by her husband under Section 13(1)(ia) of Hindu Marriage Act, 1955, the Ld. Court has dismissed the objections filed by the Petitioner against an earlier order of the said Court issuing a commission for recording evidence. The Petition objected to the issuance of commission on the ground that she was unable to afford the fees of the commissioner which was directed to be paid equally by both parties. The finding of the Family Court was that the copy of the passbook of the bank account of the Petitioner indicated that she can afford to pay the fees so directed.


The Hon’ble Court held that where the parties do not or when a party does not consent to recording of evidence by Commissioner, then the discretion must be exercised judicially and for valid reasons and the ground that a matter is old and languishing cannot be the sole ground for appointment of Commissioner. It was noted by the Hon’ble Court that the entries in the said bank account of the Petitioner were of the money sent by her brother who was supporting the Petitioner as the interim maintenance of Rs. 2,500/- per month was not enough for the sustenance of the Petitioner.  Therefore, when a matter is referred, without consent, for recording of evidence by Commissioner, the factum that the matter is old and long pending must be coupled with other cogent reasons such as grave urgency, large number of witnesses, non-availability of time with trial court at the time of evidence and possibility of evidence being lost. In view of the above-mentioned settled position of law along with paucity of consent as well inability of the Petitioner to pay the fee of the commissioner, the impugned order was set aside.