Delhi High Court Upholds Local Commissioner Recording Evidence in Matrimonial Case; Holds Courtroom Supervision Impractical and Rejects Reading Order XVIII Rule 5 to Nullify Commissioner Procedure
Delhi High Court Upholds Family Court’s Detailed Evidence Protocol Before Local Commissioner; Finds Demand for Continuous Courtroom Supervision Impractical
Facts
The petition was filed by Tarushi Rathore against Sanjay Rathore under Article 227 of the Constitution, challenging the Family Court’s order dated 12 August 2026 in HMA No. 805/2023.
By the impugned order, the Family Court-02, Central, Tis Hazari Courts, Delhi had directed that the parties’ evidence be recorded before a Local Commissioner.
The Family Court did not merely appoint a Commissioner. It prescribed an extensive procedural framework governing the entire evidence-recording exercise, including scheduling, production and exhibition of documents, cross-examination, objections, witness demeanour, confidentiality, summoning official witnesses, remuneration and circumstances requiring judicial intervention.
Significantly, before the High Court, Tarushi Rathore clarified that she was not challenging the appointment of the Local Commissioner itself. Her concern was that, having regard to the respondent’s alleged nature and conduct, evidence should preferably be recorded in the courtroom so that the Family Court Judge could intervene whenever disputes arose.
Issues
The principal issue was whether the High Court should interfere under Article 227 with the Family Court’s decision to have evidence recorded before a Local Commissioner.
The Court also considered whether the evidence should instead be recorded inside the courtroom to enable immediate intervention by the Family Court Judge whenever disputes arose during cross-examination.
A further legal issue arose concerning the relationship between Order XVIII Rule 5 CPC, relied upon by the petitioner, and Order XVIII Rule 4(2) CPC, which permits recording of cross-examination and re-examination before a Commissioner.
Petitioner’s Arguments
The petitioner expressly stated that she did not seek to impugn the appointment of the Local Commissioner.
Instead, counsel submitted that because of the nature and conduct of the respondent, the evidence should be recorded in the courtroom, where the Presiding Judge would remain available to intervene immediately if any dispute or procedural difficulty arose.
The petitioner further relied upon Order XVIII Rule 5 CPC, arguing that where an appeal is permissible, evidence of witnesses is contemplated to be recorded either in the presence of the Judge or under the Judge’s personal direction and superintendence.
Thus, the petitioner did not object to the identity or appointment of the Local Commissioner but sought greater judicial supervision over the physical recording of evidence.
Respondent’s Arguments
The judgment records no appearance or separate submissions on behalf of Sanjay Rathore.
The petition was therefore considered principally on the petitioner’s submissions and the detailed procedural safeguards already incorporated by the Family Court.
Analysis of the Law
Recording Evidence in the Courtroom Was Impractical
The High Court was not persuaded that evidence should necessarily be recorded in the courtroom merely so that the Family Court Judge would remain continuously available for intervention.
A Family Court functions as a regular court with its own board of matters. Evidence proceedings may generate repeated objections or disputes requiring intervention.
If the Judge were expected to remain continuously available during evidence before the Local Commissioner, such repeated intervention could impede the Judge’s ability to discharge other judicial functions.
The Court therefore found the petitioner’s suggestion impractical, although it acknowledged that the submission had been made forthrightly.
Family Court Had Already Created Detailed Safeguards
A significant reason for refusing interference was the unusually detailed nature of the Family Court’s order.
The High Court observed that the order took into account “various eventualities which may arise during the recording of evidence”, including the need for summoning documents.
Among other safeguards, the Family Court had directed that objections concerning exhibition of documents be recorded by the Commissioner and left open for adjudication by the referral Court at the final stage.
Objections raised during cross-examination or re-examination were similarly required to be recorded, while the witness ordinarily remained obliged to answer.
The Commissioner could also record witness demeanour where pertinent, ensure that witnesses were not improperly assisted during cross-examination, and preserve the original depositions.
Most importantly, the Family Court’s procedure itself contemplated judicial intervention where necessary. If an unforeseen situation required the Court’s involvement, the Local Commissioner could fix a date and time for both sides to appear before the Court for removal of the impediment.
Order XVIII Rule 5 Cannot Render Rule 4(2) Redundant
The petitioner sought to rely upon Order XVIII Rule 5 CPC to support the proposition that evidence should be recorded under the personal direction and superintendence of the Judge.
The High Court expressed a prima facie view that the interpretation advanced by the petitioner would make Order XVIII Rule 4(2) CPC “otiose and unworkable.”
This qualification is important: the Court did not finally adjudicate an abstract conflict between Rules 4(2) and 5. It recorded only a prima facie view and left the petitioner free to raise the issue appropriately before the Family Court.
Precedent Analysis
No judicial precedent was cited or substantively analysed in the High Court’s judgment.
The decision turned principally upon the statutory procedure under Order XVIII Rules 4(2) and 5 CPC, the practical functioning of the Family Court and the detailed safeguards incorporated into the impugned order.
The High Court therefore did not formulate any broad precedent that evidence in matrimonial proceedings must invariably be recorded through Local Commissioners.
Its narrower conclusion was that, on the facts of this case and given the safeguards contained in the Family Court’s order, there was no basis to set the order aside in its entirety.
Court’s Reasoning
The High Court considered the Family Court’s procedural framework sufficiently comprehensive to address the petitioner’s concerns.
The Commissioner had been directed to conduct evidence on a day-to-day basis, generally between 10:00 a.m. and 5:00 p.m., with the evidence ordinarily being completed within a tightly prescribed timeframe.
The order also imposed duties of impartiality, confidentiality and integrity upon the Local Commissioner.
Given these safeguards and the express mechanism for seeking judicial intervention when a genuine stalemate arose, the High Court saw no practical justification for requiring the entire evidence-recording process to occur in the Family Court Judge’s physical presence.
The Court nevertheless did not completely foreclose the petitioner’s concern. It held that the suggestion that evidence be recorded in the courtroom could still be placed before the Family Court in an appropriate manner, and the Family Court could consider it if circumstances warranted.
Thus, the High Court declined supervisory interference while preserving the Family Court’s discretion to modify the practical arrangement if developments during the proceedings justified doing so.
Conclusion
The Delhi High Court declined to set aside the Family Court’s order directing recording of evidence before a Local Commissioner.
It found the proposal for courtroom recording impractical because repeated intervention during evidence could interfere with the Family Court Judge’s regular judicial work, particularly when the impugned order already contained elaborate procedural safeguards.
The Court also observed prima facie that the petitioner’s interpretation of Order XVIII Rule 5 CPC could render the Commissioner procedure contemplated by Order XVIII Rule 4(2) CPC otiose and unworkable.
However, liberty was effectively preserved for the petitioner to raise her suggestion before the Family Court in an appropriate proceeding.
The petition and all pending applications were accordingly disposed of.
Case Details
Case: Tarushi Rathore v. Sanjay Rathore
Court: Delhi High Court
Case Number: CM(M) 2002/2026 with CM APPL. 61708/2026 & 61709/2026
CNR: DLHC010430172026
Judge: Justice Harish Vaidyanathan Shankar
Date: 10 September 2026
Result: Article 227 petition disposed of without interfering with the Family Court’s order for recording evidence before a Local Commissioner; petitioner permitted to place her courtroom-supervision suggestion before the Family Court appropriately.
