whether in the facts of the case, the afore-stated admissions of the
respondent, warrant a decree on admission. At the outset, it may be noted
that the proceedings are matrimonial proceedings, wherein the petitioner
has sought divorce on the grounds of cruelty and desertion. The said
petition is contested by the respondent by filing his written statement.
According to the respondent, he is ready and willing to give divorce to the
petitioner, as per the customs prevailing in their community. The said
acceptance of the respondent of divorce cannot be said to be an admission
under Order 12 Rule 6. The grounds on which divorce is sought by the
petitioner i.e. cruelty and desertion are not accepted by the respondent and
are infact contested by him.
Thus, there can be no application of Order 12 Rule 6, in the
facts of the present case, as all the allegations will have to be gone into by
the Trial Court, before granting the decree of divorce. What is important
are the grounds on which divorce is sought and not merely the prayer for
divorce. Merely, because the respondent is willing to give divorce as per
the customs prevailing in the community, does not mean that the grounds
on which the divorce is sought, are accepted by him. The learned Judge has
rightly rejected the application, preferred by the petitioner.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6474 OF 2013
Karishma Qureshi,V Faisal Qureshi,
CORAM : REVATI MOHITE DERE, J.
PRONOUNCED ON : JULY 30, 2014
Citation; AIR 2015 Bombay 46
1. By this petition preferred under Article 227 of the Constitution
of India, the petitioner has impugned the order dated 21st May, 2013 passed
by the learned Judge, Family Court No.7, Bandra, Mumbai, below Exhibit
No. 53 in Petition No. A-964/2011.
2. The short question that arises for consideration is: whether on
the basis of the admission made by the respondent, the petitioner is entitled
to a decree of divorce under Order 12 Rule 6 of the Code of Civil Procedure
(`CPC').
3. Brief facts as are necessary to decide the present petition are as
follows :
The petitioner and the respondent got married on 19th
December, 2002 under the Special Marriage Act, 1954 and the said
marriage came to be registered with the Registrar of Marriage. On 12th
August, 2005, the parties were blessed with a daughter. Thereafter,
differences arose between the parties, pursuant to which, the petitioner filed
a petition on 21st April, 2011 in the Family Court at Bandra, Mumbai,
interalia, seeking divorce on the ground of cruelty and desertion, being
Petition No. A-964/2011. The said petition was filed under Section 27 (1)
(id), 37 and 38 of the Special Marriage Act, 1954 and under Section 7(1)(c)
(d) of the Family Court Rule Act, and Order XXXIX Rule (2) of the CPC
and Sections 19, 20, 21, 22, 23 and 26 of the Protection of Women from
Domestic Violence Act of 2005. The said petition was contested by the
respondent by filing his written statement. The respondent husband also
filed a matrimonial suit, being matrimonial suit No. B-35 of 2011 in the
Family Court, Bandra, Mumbai, interalia seeking a permanent order of
injunction, restraining the petitioner from entering into and/or bringing any
outsider and/or remaining in the matrimonial flat. Several applications and
orders thereon came to be passed in both the petition as well as in the Suit.
In view of the averments and statement/admissions made by
the respondent in the matrimonial suit as well as in the written statement
filed by the respondent in Petition No. A-964/2011, the petitioner herein
preferred an interim application, being Exhibit 53 in Petition No. A-
964/2011 on 14th August, 2012 inter alia praying, that a preliminary issue be
framed with regard to divorce, on the basis of the statements/admissions
made by the respondent, by keeping aside all other issues. The said
application is at `Exhibit D' on page 88 of the said petition. The said
application was contested by the respondent by filing his reply. It was
contended by the respondent husband, that even if the parties were desirous
for a divorce, what was important were the grounds on which the decree
of divorce was sought, which cannot be bifurcated for the purpose of
deciding the said preliminary issue. The learned Judge, Family Court,
Bandra, was pleased, vide order dated 21st May, 2013, to reject the said
application passed below Exhibit 53 in Petition No. A-964/2011. The Trial
Court, while rejecting the said application, observed that the averments of
the respondent would not come within the scope and purview of Order 12
Rule 6 of the CPC and that it could not be said that the respondent had
admitted the allegations made by the wife in the petition for divorce and
hence, there was no question of framing any preliminary issue, on the basis
of the averments made in the written statement and in Petition No. B-
35/2011. Accordingly, the application preferred by the petitioner came to
be rejected, as not being maintainable, with costs. Hence, this petition.
4. The learned Counsel for the petitioner relied on Order 12 Rule
6 of CPC, which is reproduced hereinunder :
“6. Judgment on admissions.- (1) Where admissions of fact
have been made either in the pleading or otherwise, whether
orally or in writing, the Court may at any stage of the suit,
either on the application of any party or of its own motion and
without waiting for the determination of any other question
between the parties, make such order or give such judgment as
it may think fit, having regard to such admissions.”
5. The learned Counsel for the petitioner contended that the
respondent had in the matrimonial Suit No. B-35/2011, in para 1, clearly
admitted that there were no relations between the petitioner and the
respondent for the last two years. He also relied on paras 11 and 12 of the
aforesaid proceedings in support of his contention. Paras 11 and 12 read
thus :
“11. The plaintiff states that the daughter of the plaintiff is
hardly 6 years old and if she continues to reside in such an
atmosphere obviously, entire career of the said minor child
would get spoiled. The plaintiff states that as per the customs
prevailing in their community, the plaintiff is ready and
willing to give necessary divorce to the defendant
hereinabove. The plaintiff states that however, even while
giving divorce, the plaintiff had never take risk of spoiling
career of his minor daughter as considering the present status
of th defendant, if the minor daughter of the plaintiff is
allowed to remain with the defendant, obviously, she will also
be spoiled.
12. The plaintiff states that in view of the said facts,
realizing his responsibility and though the defendant is not
having any relations with the plaintiff since last 2 years, the
plaintiff is ready and willing to provide such temporary
alternate accommodation to the defendant hereinabove. The
plaintiff states that if the defendant is permitted to continue to
reside in the said flat and/or is being permitted to continue
with her such illegal activities in the said flat, the entire life of
the child would get spoiled. ”
6. The learned Counsel for the petitioner also relied on the
statement made by the respondent in the written statement filed by the
respondent in Petition No. A-964/2011, in particular, para 3, which is
reproduced hereinunder :
“3. This Respondent submits that in order to avoid
repetition of the averments made in the Petition filed by me,
the contents thereof be treated to be part and parcel of present
written statement filed before this Hon'ble Court.”
7. The learned Counsel for the petitioner contended that a perusal
of the aforesaid admissions made by the respondent in the aforesaid petition
i.e. the written statement filed in Petition No. A-964/2011, and in Suit
No.B-35/2011, the respondent has clearly admitted that he is willing to
divorce the petitioner and that they were living separately for the last two
years. He contended that in view of the admission of the respondent that he
is willing to divorce the petitioner and that the marriage had broken down,
this Court, be pleased to grant a decree of divorce on the basis of the said
admissions. He further contended that on the basis of the said admissions,
the controversy would narrow down and in view of the averments, it is
clear that both the parties to the list are ad idem for seeking a divorce. He
further submitted that on the basis of the admissions, decree of divorce can
be granted and that would avoid multiplicity of the proceedings and
wastage of the Court's precious time in disposal of the two petitions, which
otherwise would take years to conclude. He contended that the admissions
as stated aforesaid, were clearly admissions under Order 12 Rule 6 of the
CPC and were admissions of fact and therefore, the trial Court ought to
have accordingly passed an order. Mr. Kantawala, learned Counsel for the
petitioner also contended that in the affidavit filed by the respondent in this
petition, the respondent has not seriously disputed the admissions made by
him in the matrimonial suit as well as in the written statement filed in
Petition No. A-964/2011. He relied on the Judgments rendered in the case
of Uttam Singh Dugal & Co. Ltd. v. Union Bank of India & Ors.1 and in
Rajiv Srivastava vs. Sanjiv Tuli & Anr.2
8. Per contra, Mr. Saraogi, learned Counsel for the respondent
opposed the petition. He contended that the statement made and relied on
by the petitioner on page 81 is a conditional statement and is in the nature
of an offer and not an admission. He further contended that merely
because there is an offer in the said statement, that cannot be construed as
1 AIR 2000 SC 2740
2 AIR 2005 DELHI 319
an admission. He further submitted that what has been admitted by the
respondent is that he is ready to give divorce to the petitioner, as per the
customary personal law. He submitted that the respondent has in his
affidavit stated that the averments made as aforesaid, are conditional
statements and not acceptance of the cause of action or allegations made by
the petitioner. He relied on the order dated 19th November, 2007 passed by
the Division Bench of this Court in the Case of Panbai M. Shah & Anr. vs.
Abdul Hussain Unnwala & Anr.3 in support of his contention.
9. Heard learned Counsel for the petitioner. Perused the petition
along with all the annexures thereto and the affidavit in reply filed by the
respondent and the Judgments relied upon by both the parties in support of
their contention.
10. A perusal of Order 12 Rule 6 of the Code of Civil Procedure
shows that only where the admissions of fact have been made either in any
pleading or otherwise, whether orally or in writing, the Court may at any
stage, either on an application of any party or of its own motion, make any
3 Appeal No. 617/2007 in N/M. No. 1956/2007
order or give such Judgment as it may think fit, having regard to the
admissions. In the present case, the petitioner is seeking a decree of
divorce, only on the basis of few admissions made by the respondent. The
petitioner has filed divorce proceedings in the Family Court. In the said
divorce proceedings, the petitioner has made allegations of cruelty and
desertion as against the respondent, on the basis of which the divorce has
been sought. The petitioner is claiming divorce only on the admission of
the respondent that he was willing to give divorce to the petitioner. It is
pertinent to note, that the grounds on which divorce is sought, have not
been admitted by the respondent and there is no admission of the said
facts. What cannot be lost sight of, are the nature of allegations and the
grounds on which divorce is sought, cannot be bifurcated for granting the
prayer of the petitioner. The judgments relied upon by Mr. Kantawala in the
case of Uttam Singh Dugal & Co. Ltd. (supra) and Rajiv Srivastava
(supra), would not apply to the facts of the present case, inasmuch as, the
present proceedings are matrimonial proceedings. In the case of Uttam
Singh Dugal & Co. Ltd. (supra), there were clear admissions of facts, in
the face of which, it was impossible for the party making such an
admission to succeed. It was a suit for recovery against the Company. The
Court held that the statement made in the proceeding of the Board of
Directors Meeting and the letter sent to the plaintiff, as well as the
pleadings, when read together, led to a conclusion that there were clear
admissions. In the said case, there was no pleading much less an
explanation as to the circumstances in which the said admission was made,
so as to take it out of the category of admissions which created the liability.
In the case of Rajiv Srivastava (supra), the dispute was between the
landlord and tenant. It was a case where a Lease Deed was executed
between the parties and pursuant to the Lease Deed, the defendant
continued to occupy the premises even on expiry of the lease. In the said
case, the defendant in his written statement had admitted the rate of the
rent of premises ; the relationship of landlord and tenant between the
parties and even in the pleadings, there was no dispute with regard to the
execution of registered Lease Deed on specific terms and conditions and it
was in those circumstances, that the decree was passed by the Trial Court
based on the admitted facts, under Order 12 Rule 6 of the CPC.
11. It is well settled principle of law, that where admissions of fact
have been made, decree on admission can be passed. However, the said
admission has to be unambiguous, certain and incapable of any confusion.
The present case being a matrimonial proceedings, what was only admitted
was that the respondent was willing to give a divorce to the petitioner under
the personal law and not the grounds on which the divorce was sought by
the petitioner. Therefore, the admission made by the respondent cannot be
said to be an admission as contemplated under Order 12 Rule 6 of the CPC.
12. A decree on admission is not a matter of right, but rather a
discretion of the Court, which discretion must be exercised in accordance
with known judicial canons. In the case of Vijay Gupta v. Ashok Kumar
Gupta, reported in AIR 2007, Delhi 166, the Delhi High Court has
observed as under :- :
“8.It is also a settled principle of civil jurisprudence that
judgment on admission is not a matter of right and rather is a
matter of discretion of a Court. Where the defendant has
raised objection which will go to the very root of the case, it
would not be appropriate to exercise this discretion. The use
of the words 'May' and 'make such orders' or 'give such
judgment' spells out that power under these rules are
discretionary and use of discretion would have to be
controlled in accordance with the known judicial canons. The
cases which involves questions to be decided upon regular
trial and the alleged admissions are not clear and specific, it
may not be appropriate to take recourse to these provisions. In
the case of Pariwar Sewa Sansthan v. Dr,(Mrs.) Veena Kalra,
AIR 2000, Delhi 349 the Court examined at length the
provisions and the need for an admission to be unequivocal
and positive. The admission would obviously have the
consequences of arriving at that conclusion without
determination of any question and evidence. …...”
13. The question that arises for consideration, therefore, is
whether in the facts of the case, the afore-stated admissions of the
respondent, warrant a decree on admission. At the outset, it may be noted
that the proceedings are matrimonial proceedings, wherein the petitioner
has sought divorce on the grounds of cruelty and desertion. The said
petition is contested by the respondent by filing his written statement.
According to the respondent, he is ready and willing to give divorce to the
petitioner, as per the customs prevailing in their community. The said
acceptance of the respondent of divorce cannot be said to be an admission
under Order 12 Rule 6. The grounds on which divorce is sought by the
petitioner i.e. cruelty and desertion are not accepted by the respondent and
are infact contested by him.
14. Thus, there can be no application of Order 12 Rule 6, in the
facts of the present case, as all the allegations will have to be gone into by
the Trial Court, before granting the decree of divorce. What is important
are the grounds on which divorce is sought and not merely the prayer for
divorce. Merely, because the respondent is willing to give divorce as per
the customs prevailing in the community, does not mean that the grounds
on which the divorce is sought, are accepted by him. The learned Judge has
rightly rejected the application, preferred by the petitioner. No interference
is therefore warranted. Petition being devoid of merits, is dismissed.
REVATI MOHITE DERE, J.
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