Order 12, Rule 6, C.P.C. makes a provision for judgment on admissions. A careful reading of the provision as contained in Order 12, Rule 6, C.P.C. would show that the Court is not empowered to dispose of the entire suit on the basis of such admissions as are being alleged in the present case. The provision only empowers the Court to grant a partial decree in a pending suit on the basis of admission in the pleadings. I am, therefore, of the view that the impugned judgment and decree cannot be said to be one under Order 12, Rule 6, C.P.C. Another provision for immediate pronouncement of judgment is contained in Order 15, Rule 1, C.P.C. which reads as follows:--
"Parties not at issue.--- Where at the first hearing of suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment."
In the present case, it cannot be said that the parties were not at issue on any question of law or of fact and, therefore, the Court could not pronounce judgment on the basis of the alleged admissions of the appellant in her written statement. Frankly speaking, the petition for divorce contained vague allegations of continuous act of adultery against the wife but did not contain any specific allegation to the effect that the wife had voluntary sexual intercourse with any person other than her husband. Accordingly, the impugned judgment and decree of the Court below cannot be sustained even on the basis of the provision contained in Rule 1 of Order 15, C.P.C.1
Madhya Pradesh High Court
Smt. Leela Pande vs Shri Sachendra Kumar Pande on 16 February, 1994
Equivalent citations: AIR 1994 MP 205, 1995 (0) MPLJ 397
1. This is an appeal by the wife against the decree for divorce in favour of the husband on the basis of her alleged admissions in her written statement and on the ground of adultery.
2. On 30-8-1990 the respondent filed a petition for divorce under Section 13(1) of the Hindu Marriage Act, 1955, (in short, the "Act"), against the appellant on the ground of adultery. On the first date of appearance, the appellant appeared with her counsel, but as the Presiding Officer was on leave, she again appeared with her counsel on the next date, i.e. on 12-10-1990 given by the Court Reader and filed her written statement, which contained her alleged admissions and on the basis of which a decree for divorce was granted on 7-12-1990 in her absence, but in the presence of her counsel without recording any statement either of the husband or of the wife or their counsel. Being aggrieved, the wife has preferred this appeal, mainly oh the ground that the decree was obtained by fraud.
3. After hearing the learned Counsel for the parties, I was initially inclined to dismiss the appeal on the ground that the remedy of the wife was to file a separate suit for setting aside the impugned decree on the ground of fraud, but the learned Counsel for the appellant cited Raji Pachori v. Kamlesh Pachori, 1993 JLJ 561, and submitted that in similar circumstances, a similar decree for divorce was set aside by this Court.
The aforesaid decision of this Court at least, gives a correct indication that the legality or otherwise of any decree even if based on admission can be examined. It is well settled that an ex parte decree or a decree based on compromise or admission cannot be lightly interfered with on allegations of fraud or sufficient cause for non-appearance; but it is permissible to show that a decree to be otherwise bad in law or perverse. In this context, I feel that the case requires consideration and accordingly, I proceed to do so.
4-5. Prior to amendment in 1976, living in adultery was a ground for divorce under Section 13(f)(i) of the Act, but after the amendment, a decree -for divorce under Section 13(1)(i) may be on the ground that the other party:
"has after the solemnization of the mar-riage had voluntary sexual intercourse with any person other than his or her spouse."
The allegations in the petition for divorce filed by the respondent in the Court below would show that an attempt was made to show that the wife was leading an adulterous life from before the date of marriage. However, this allegation of continuous life of adultery by the wife has neither been proved nor can be inferred from the alleged admissions made by the wife in her written statement. Now after the amendment, an isolated or stray voluntary act of adultery appears to be sufficient to afford a ground for divorce. The word "voluntary" appearing in Section 13(1)(i) of the Act requires special attention and appears to be very significant, because it gives a definite indication that involuntary "sexual intercourse with any person other than his or her spouse" would not afford a ground for divorce under Section 13(1)(i) of the Ac. The question, therefore, is what can be considered to be involuntary sexual intercourse ? 1 am of the view, that there may be various circumstances in which involuntary sexual intercourse may take place. Some of such involuntary sexual intercourse may be as mentioned in Section 375 of the Indian Penal Code, which defines rape in the following words : --
"375. Rape.-- A man is said to commit 'rape' who except in the case hereinafter excepted, has sexual intercourse with a woman Wider circumstances falling under any of the five following descriptions :
First. Against her Will.
Secondly. Without her consent.
Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death, or of hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of un-soundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly With or without her consent, when she is under sixteen years of age.
Now in this context, if we look to the pleadings, it would appear that in paragraphs 6 and 7 of his petition for divorce, the respondent made an allegation that between January, 1989 to June, 1990 he had no carnal relations with the appellant and, therefore, he was surprised to know in the month of June, 1990 that the appellant had given birth to a female child on 18th June, 1990. In paragraph 8 of his petition, the respondent further alleged that for a long time the appellant was leading a life of adultery and in para 9 thereof it was specifically alleged that the appellant admitted her illicit relations with one Vinod Mishra and Birendra Mishra of her village and that the daughter born to her was through either of them. Now in paragraphs 5 and 6 of her written statement, the appellant only admitted this much out of the allegations made in paragraphs 6 and 7 of the petition for divorce, that since January, 1989 she had no marital relations with the respondent and that she had given birth to a child on 18th of June, 1990. In reply to paragraph 8 of the petition, she did not specifically admit that she was leading an adulterous life and in reply to paragraph 9 of the petition, she stated in paragraph 8 of her written statement that on 5th July, 1990 she went to Shahdol along with her brother and stayed at Shahdol. She further stated that it was made clear to the respondent that the child born to her on 18th June, 1990 was not through the respondent. It is pertinent to be noted that she did not specifically admit that she had illicit relations with either Vinod Mishra or Birendra Mishra or that the child was through either of them. Assuming, that the absence of any specific denial of allegations made against her in paragraph9 of the petition, the appellant could be deemed to have admitted the facts alleged by a virtue of the provision contained in Order 8, Rule 5(1), C.P.C.; one would find from the pleadings of the parties that neither there was any specific allegation from the respondent nor any specific or implied admission by the appellant that the birth of a female child on 18th June, 1990 was the result of any voluntary act of sexual intercourse committed by her with any person other than her husband. It is also to be borne in mind that in the absence of any evidence on record, the Court below could not have accepted or acted upon such serious and wild allegations of illicit relations of the wife with certain strangers or named persons, particularly when the proviso to Sub-rule (1) of Rule 5 or Order 8, C.P.C. gave a discretion to the Court to require any fact to be proved otherwise than by such deemed admission. While observing so, I am resisting myself for saying that no woman in India, even if leading an adulte-rious life, would come forward and so shamelessly admit that she was leading such adulterous life, as has been tried to be demonstrated in the present case by placing reliance on such absurd, unnatural and unbelievable admission of adultery by the wife. As a result of this discussion, the only conclusion which can reasonably be arrived at is that no decree for divorce on the ground of adultery as mentioned in Section 13(1)(i) of the Act could be granted in favour of the respondent in the absence of any material on record to show that the appellant has voluntary sexual intercourse with a stranger to the marriage, even though a child was shown to have been born to her without any contact with her husband continuously for a period of more than one year.
6. Order 12, Rule 6, C.P.C. makes a provision for judgment on admissions. A careful reading of the provision as contained in Order 12, Rule 6, C.P.C. would show that the Court is not empowered to dispose of the entire suit on the basis of such admissions as are being alleged in the present case. The provision only empowers the Court to grant a partial decree in a pending suit on the basis of admission in the pleadings. I am, therefore, of the view that the impugned judgment and decree cannot be said to be one under Order 12, Rule 6, C.P.C. Another provision for immediate pronouncement of judgment is contained in Order 15, Rule 1, C.P.C. which reads as follows:--
"Parties not at issue.--- Where at the first hearing of suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment."
In the present case, it cannot be said that the parties were not at issue on any question of law or of fact and, therefore, the Court could not pronounce judgment on the basis of the alleged admissions of the appellant in her written statement. Frankly speaking, the petition for divorce contained vague allegations of continuous act of adultery against the wife but did not contain any specific allegation to the effect that the wife had voluntary sexual intercourse with any person other than her husband. Accordingly, the impugned judgment and decree of the Court below cannot be sustained even on the basis of the provision contained in Rule 1 of Order 15, C.P.C.
7, There are also other legal infirmities in the case such as, failure of the Court below to discharge its duty under Section 23(2) of the Act by making a sincere attempt to bring about reconciliation between the parties; or to record statements on oath of the parties before passing the impugned decree in the peculiar facts and circumstances of the case; but I am of the view, that it is not necessary to burden this judgment by examining such further legal infirmities, because 1 feel that the legal infirmities hereinbefore pointed out, are very serious in nature and sufficient for setting aside the impugned judgment and decree of the Court below. However, a passing remark may be made that in such cases of admission in matrimonial proceedings the Courts are expected to be more vigilant and to look with suspicion such admission as has been made in the present case, particularly when divorce by mutual consent is now possible and permissible by virtue of Section 13B of the Act. When divorce by mutual consent is possible, why any party to a marriage, guilty of adultery and willing for divorce, would like to admit adultery on his or her part and expose himself or herself to public ridicule and mockery by such admission.
18. In the result, this appeal succeeds and it is hereby allowed. The impugned judgment and decree of the Court below are set aside and the case is sent back to the Court below with a direction to try it again in accordance with law after giving the wife a fresh opportunity for filing her fresh written statement, if so advised. In the facts and circumstances of the case, 1 make no order as to costs of this appeal.
9. The trial Court is expected to expedite the trial of the case in the peculiar facts and circumstances of the case hereinbefore highlighted.
No comments:
Post a Comment