the Full Bench of this Court held that a decree for dissolution of
marriage cannot be made merely on admissions and without recording
any evidence. In the case of Sushila Mahendra Nanavati Vs.
Mahendra Manilal Nanavati, AIR 1960 Bombay 117, the Division
Bench of this Court held that under Order 8, Rule 5, it is well settled that
both the plaintiff as well as the defendant must be held bound by the
statement of facts in their respective pleadings. But under the proviso to
Order VIII, Rule 5, the Court may, in its discretion require any fact
admitted to be proved otherwise than by such admission. The proviso to
Section 58 of the Evidence Act is also to the same effect. In
matrimonial proceedings, there can be no judgment by default or
admission. Even in the case of Pranjali Bingi (supra), the learned
Single Judge of this Court held in paragraph 10 that merely because both
the parties have prayed for same reliefs of divorce, on the basis of
different set of facts, the Court does not get jurisdiction to pass order
under Order 12, Rule 6 C.P.C.
IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6066 OF 2014
Meenal Nigam Vs.Ravi Kalsi
CORAM : R. G. KETKAR, J.
Pronounced on: 13TH MARCH, 2015
Citation;2016(1) ALLMR 89
Moray, learned Counsel for respondent at length. Rule. Mr. Moray
waives service. At the request and by consent of the parties, rule is
made returnable forthwith and the Petition is taken up for final hearing.
2. By this Petition under Article 227 of the Constitution of India, the
petitioner-wife has challenged the judgment and order dated 12.06.2014
passed by the learned Judge, Family Court No.5, Mumbai below
exhibit-22/A in Petition No.A-2405 of 2013. By that order, the Family
Court dismissed the application made by the petitioner for delivering the
judgment of divorce on admission under Order 12, Rule 6 of the Code of
Civil Procedure, 1908 (for short 'C.P.C.').
3. In support of this Petition, Mr. Lalwani submitted that the
petitioner-wife has instituted Petition for Divorce being M. J. Petition
No.2405 of 2013 under Section 13(1)(i-a) of the Hindu Marriage Act,
1955 (for short 'Act') on the ground of cruelty and for custody of minor
son Jasraj to her. The respondent filed written statement along with the
counter claim. In paragraph 1 of the counter claim, respondent
submitted that the intention of the petitioner is to torture and harass him.
It was further contended that on the contrary, it is he who has suffered
mental and physical agony and harassment at the hands of the petitioner
and the details were set out in the counter claim. In paragraph 16,
respondent contended that the marriage is now beyond any reasonable
hope of reconciliation. He also prayed for dissolving the marriage under
Section 13(1)(i-a) and / or (i-b) of the Act and also sought permanent
custody of the minor son Jasraj.
4. The petitioner filed application in March 2014 (exhibit-22/A) for
delivering judgment of divorce on admission under Order 12, Rule 6
C.P.C. In paragraph 3, she admitted that she has withdrawn from the
respondent's society and deserted the respondent for a period of more
than 2 years preceding the counter claim. Mr. Lalwani submitted that
admission is clear and unqualified and is in terms of the requirements of
Section 13(1)(i-b) of the Act. Respondent filed his reply on 07.05.2014.
The reply is filed while the counter-claim is pending. He submitted that
the Family Court dismissed the application on the ground that the
petitioner is taking undue advantage of her own wrong. In view of
Section 23 of the Act, it is well settled law that the wrong does cannot
take advantage of his / her own wrong.
5. He submitted that Section 9 of the Act lays down that when either
husband or wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply, by petition to the
district Court, for restitution of conjugal rights and the Court, on being
satisfied of the truth of the statements made in such petition and that
there is no legal ground why the application should not be granted, may
decree restitution of conjugal rights accordingly. In other words,
Section 9 deals with a situation where either a husband or wife has,
without reasonable excuse, deserted the other spouse. Section 13(1)(i-b)
lays down that any marriage solemnized, whether before or after the
commencement of the Act, may, on a petition presented by either
husband or wife, be dissolved by a decree of divorce on the ground that
the other party has deserted the petitioner for a continuous period of not
less than 2 years immediately preceding the presentation of the
petitioner. Thus the ground under Sections 9 and 13(1)(i-b) is one and
the same namely ground of desertion. But the reliefs under Sections 9
and 13(1)(i-b) are different. He further submitted that Section 13(1-A)
lays down that either party to a marriage, whether solemnized before or
after the commencement of the Act, may also present a petition for the
dissolution of the marriage by a decree of divorce on the ground (i) that
there has been no resumption of cohabitation as between the parties to
the marriage for a period of 1 year or upwards after the passing of a
decree for judicial separation in a proceeding to which they were parties;
or (ii) that there has been no restitution of conjugal rights as between the
parties to the marriage for a period of 1 year or upwards after the
passing of a decree for restitution of conjugal rights in a proceeding to
which they were parties. In other words, even after passing of a decree
of restitution of conjugal rights under Section 9, if there is no restitution
of conjugal rights as between the parties to the marriage for 1 year or
upwards, Section 13(1-A)(ii) gives right to either of the parties to the
marriage to present the Petition for dissolution of marriage by a decree
of divorce.
6. Mr. Lalwani submitted that the petitioner has instituted Petition
for divorce on the ground of cruelty under Section 13(1)(i-a) of the Act.
Even the respondent has prayed for dissolution of marriage under
Section 13(1)(i-a) and / or (i-b) of the Act, namely on the ground of
cruelty or desertion. The petitioner in paragraph 3 of the application
exhibit-22/A clearly admitted that she has withdrawn from the
respondent's society and deserted him for a period of more than 2 years
preceding the counter-claim. In other words, the petitioner has admitted
in precise terms the ground of desertion as contemplated under Section
13-B of the Act. The Family Court, therefore, ought to have passed
judgment of divorce on admission under Order 12, Rule 6 C.P.C. He
further submitted that both the parties are claiming dissolution of
marriage. In such circumstances, the best option available to the parties
is to go for divorce by mutual consent as contemplated by Section 13(1)
(i-b) of the Act. In any case, when the respondent is also contending
that the parties are separately residing from September 2010, there is no
point in proceeding with the Petition and counter-claim filed by the
respondent. He submitted that in paragraph 1 of the counter-claim,
respondent contended that the intention of the petitioner is to torture and
harass him. It is further contended that it is he who has suffered mental
and physical agony and harassment at the hands of the petitioner. In
paragraph 16, it is submitted that the marriage is beyond any reasonable
hope of reconciliation. In such state of affairs, the Family Court should
have passed decree of divorce on an admission as contemplated by
Order 12, Rule 6 C.P.C. In support his submissions, he relied upon the
following decisions:
a. Pranjali Prasanna Bingi Vs. Prasanna Anantrao Bingi,
2011 (1) Bom.C.R. 820;
b. Savitri Pandey Vs. Prem Chandra Pandey,
AIR 2002 SC 591;
c. Gajna Devi Vs. Purshotam Giri, AIR 1977 Delhi 178; and
d. Ram Kali Vs. Gopal Dass, (1971) ILR 1 Delhi 6.
7. On the other hand, Mr. Moray supported the impugned order. He
submitted that the Family Court has rightly held that the petitioner is
trying to take advantage of her own wrong namely that she had deserted
the respondent without reasonable cause and staying separate for more
than 2 years. She had further admitted that she herself had deserted him
without his fault, which shows that she is a wrong-doer as per Section
23 of the Act.
8. Mr. Moray further submitted that decree on admission is not a
matter of right but rather discretion of a Court, which discretion must be
exercised in accordance with known judicial cannons. He also relied
upon Section21 and proviso to Section 58 of the Indian Evidence Act,
1872 (for short 'Evidence Act').
9. I have considered the rival submissions made by the learned
Counsel appearing for the parties. I have also perused the material on
record. As noted earlier, the petitioner has instituted Petition under
Section 13(1)(i-a) of the Act for divorce on the ground of cruelty. The
Petition is instituted on or about 06.09.2013. The respondent has filed
written statement as also counter claim on or about 29.10.2013. In the
counter-claim, respondent has sought dissolution of marriage under
Section 13(1)(i-a) and / or (i-b) of the Act. In paragraph 1, it is
contended by him that the intention of the petitioner is to torture and
harass him. It is contended that it is he who has suffered mental and
physical agony and harassment at the hands of the petitioner as detailed
in the counter claim. In paragraph 16, respondent contended that the
marriage is now beyond any reasonable hope of reconciliation.
Petitioner has filed application exhibit-22/A under Order 12, Rule 6
C.P.C. in or about March 2014. Paragraph 3 of that application reads as
under:
“3. The original Petitioner / Respondent in the Counter Claim
however admits that she has withdrawn from the Petitioner's society
and deserted the Petitioner for a period of more than two years
preceding the Counter Claim.”
10. Perusal of paragraph 3 extracted hereinabove shows that the
petitioner admitted that she has withdrawn from respondent's society
and deserted the respondent for more than 2 years preceding the counterclaim.
Mr. Lalwani submitted that this is a clear cut admission of
petitioner of ground contemplated under Section 13(1)(i-b) of the Act.
The Court, therefore, ought to have passed decree of divorce on that
ground. He submitted that serious consequences flow from admission
of the petitioner that she had deserted the respondent for a period of
more than 2 years preceding the filing of the counter-claim. Because of
her admission, she will not be entitled to claim permanent alimony also.
In view of Order 12, Rule 6 C.P.C., the Family Court ought to have
passed decree and dissolved the marriage.
11. In order to appreciate this submission, itt is necessary to consider
the provisions of Order 12, which deals with admissions. Order 12,
Rule 1 lays down that any party to a Suit may give notice, by his
pleading, or otherwise in writing, that he admits the truth of the whole or
any part of the case of any other party. Rule 5 thereof lays down that a
notice to admit facts shall be in Form No.10 and admissions of facts
shall be in Form No.11 in Appendix C, with such variations as
circumstances may require. Order 12, Rule 6 reads thus,
“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.
(2) Whenever a judgment is pronounced under sub-rule (1) a
decree shall be drawn up in accordance with the judgment and the
decree shall bear the date on which the judgment was
pronounced.”
12. The above extracted provision can be analyzed as under:
(a) Where admissions of fact have been made either in the
pleadings or otherwise, whether orally or in writing, (b) 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.
13. In my opinion, a decree on admission is not a matter of right but
rather a discretion of Court, which discretion must be exercised in
accordance with known judicial cannons. Section 23(1) of the Act lays
down that in any proceeding under the Act, whether defended or not, if
the Court is satisfied that any of the grounds for granting relief exists
and the petitioner [except in cases where the relief is sought by him on
the ground specified in sub-clause(a), sub-clause (b) or sub-clause (c) of
clause (ii) of Section 5] is not in anyway taking advantage of his or
her own wrong or disability for the purpose of such relief then the
Court shall decree such relief accordingly. (emphasis supplied)
14. As noted earlier, the petitioner has filed Petition under Section
13(1)(i-a) for divorce. Respondent has resisted the Petition by filing
written statement and set up counter-claim claiming decree of
dissolution of marriage under Section 13(1)(i-a) and / or (i-b) of the Act.
It is in these circumstances, the petitioner has filed application exhibit-
22/A for passing decree of divorce on admission under Order 12, Rule 6
C.P.C. In my opinion, the petitioner is obviously taking advantage of
her own wrong namely that she has admitted that she has deserted the
respondent for a period of more than 2 years preceding the filing of the
counter-claim. In my opinion, the Family Court was justified in refusing
to pass decree of divorce on admission on the ground that the petitioner
is taking advantage of her own wrong. Having regard to Section 23(1)
of the Act, the Family Court was satisfied that the petitioner is taking
advantage of her own wrong and accordingly declined to pass decree for
divorce on admission under Order 12, Rule 6 C.P.C.
15. Apart from that, in my opinion, perusal of Order 12, and in
particular Rule 6 thereof shows that if party A gives admission, it enable
party B namely opposite party to request the Court to pass decree on
admission of party A. In the present case, party A namely the petitioner
has given admission in paragraph 3 of her application exhibit 22/A and
the same party is requesting the Court to pass a decree of divorce on
admission under Order 12, Rule 6 C.P.C. Having regard to Section
23(1) of the Act r/w. Order 12, Rule 6, in my opinion, this situation is
not contemplated. The party who seeks decree on admission under
Order 12, Rule 6 must rely upon the admission given by the opposite
party and cannot seek decree on admission given by that party itself.
The admission of the petitioner in paragraph 3 of the application Exhibit
22/A is a self-serving. Mr. Lalwani relied upon decision in the case of
Pranjali Bingi (supra). In that case, this Court held that on a Petition
for divorce, the Court has to record its satisfaction under Section 23 of
the Act, even if Petition is undefended. In other words, in the
proceedings under the Act, the Court can arrive at the satisfaction
contemplated by Section 23 on the basis of legal evidence in accordance
with the provisions of the Evidence Act and it is quite competent for the
Court to arrive at the necessary satisfaction even on the basis of the
admissions of the parties alone. Admissions are to be ignored on
grounds of prudence only when the Court, in the circumstances of a
case, is of opinion that the admissions of the parties may be collusive.
In paragraph 10 of that judgment, the learned Single Judge of this Court
observed that merely because both the parties have prayed for same
reliefs of divorce, on the basis of different set of facts, the Court does
not get jurisdiction to pass order under Order 12, Rule 6 C.P.C. In my
opinion, this decision supports the contentions of the respondent.
16. In the case of Savitri Pandey (supra), the Apex Court held that in
any proceedings under the Act whether defended or not the Court would
decline to grant relief to the petitioner if it is found that the petitioner
was taking advantage of his or her own wrong or disability for the
purposes of the reliefs contemplated under Section 23(1) of the Act. No
party can be permitted to carve out the ground for destroying the family
which is the basic unit of the society. The foundation of the family rests
on the institution of a legal and valid marriage. Approach of the court
should be to preserve the matrimonial home and be reluctant to dissolve
the marriage on the asking of one of the parties. In the case of Gajna
Devi (supra), the wife had presented a Petition for judicial separation
under Section 10 of the Act on 05.11.1965. It was ex-parte decreed on
30.03.1966. The husband instituted Petition for divorce under Section
13(1-A) on 19.07.1972. The decree for divorce was passed under
Section 13 (1-A). In that case the question that was agitated before the
Single Judge of the Delhi High Court was that Section 23(1) of the Act
prohibits the Court from granting the relief to the husband if he is taking
advantage of his own wrong. The said contention was negatived on the
ground that the expression “petitioner is not in any way taking
advantage of his or her own wrong” occurring in clause (a) of Section
23(1) of the Act does not apply to taking advantage of the statutory right
to obtain dissolution of marriage which has been conferred on him by
section 13(1-A) of the Act subsequent to the passing of the decree for
judicial separation or restitution of conjugal rights. In such a case, a
party is not taking advantage of his own wrong, but of the legal right
following upon of the passing of the decree and the failure of the parties
to comply with the decree or resumption of cohabitation after its
passing.
17. In the case of Ram Kali (supra), similar contention was
advanced. Mr. Lalwani relied upon paragraph 12 of that report and
submitted that the object of Section 13(1-A) is in consonance with the
modern trend not to insist on the maintenance of union which has utterly
broken down. It would not be a practical and realistic approach, indeed
it would be unreasonable and inhuman, to compel the parties to keep up
the facade of marriage even though the rift between them is complete
and there are no prospects of their ever living together as husband and
wife. In that case, appellant had obtained decree for restitution of
conjugal rights against the respondent on 17.03.1961. Respondent
thereafter filed a Petition under Section 13(1-A)(ii) for decree of divorce
against the appellant on 23.01.1965. The ground on which the
respondent sought dissolution of marriage by a decree of divorce was
that there had been no restitution of conjugal rights after passing of
decree on 17.03.1961. The trial Court held that there was no restitution
of conjugal rights after passing of the decree dated 17.03.1961. In
appeal, the learned Single Judge confirmed the finding of the trial Court
that there has been no restitution of conjugal rights after passing of the
decree on 17.03.1961. After considering Section 13(1-A) of the Act, the
Full Bench observed that the effect of that Section was that not only the
spouse in whose favor a decree for judicial separation or for restitution
of conjugal rights had been granted was entitled to present a petition for
dissolution of marriage but even the other spouse against whom the
decree for judicial separation or for restitution of conjugal rights had
been awarded was also clothed with the right to present such a petition.
In paragraph 11, the Full Bench considered argument that the awarding
of a decree of divorce under sub-section 13(1-A) in favour of a spouse
against whom an earlier decree for judicial separation or restitution of
conjugal rights had been awarded would run counter to clause (a) of
sub-section (1) of Section 23 of the Act, inasmuch as the defaulting
spouse would be taking advantage of his or her own wrong and it was
not accepted. It was further observed that despite such a wrong or
failure on the part of the defaulting spouse, the legislature has given a
right by the amending Act to the defaulting spouse to apply for a decree
of divorce if the other conditions mentioned in sub-section (1A) are
fulfilled. In my opinion, the decisions in Gajna Devi (supra) and Ram
Kali (supra) are not applicable. In Gajna Devi's case, decree of
judicial separation was passed on 30.03.1966. The husband contended
that there was no resumption of cohabitation for a period of 2 years and
upwards. In Ram Kali's case, decree for restitution of conjugal rights
was passed on 17.03.1961 and that there was no restitution of conjugal
rights. In both the cases, divorce was thereafter sought under Section
13(1A). The facts are materially different from the present case.
18. Mr. Moray relied upon Section 21 and proviso to Section 58 of
the Evidence Act. Section 21 lays down that admissions are relevant
and may be proved as against the person who makes them, or his
representative in interest; but they cannot be proved by or on behalf of
the person who makes them or by his representative in interest, except in
the cases covered by-
(1) An admission may be proved by or on behalf of the person
making it, when it is of such a nature that, if the person making it
were dead, it would be relevant as between third persons under
section 32.
(2) An admission may be proved by or on behalf of the person
making it, when it consists of a statement of the existence of any
state of mind or body, relevant or in issue, made at or about the
time when such state of mind or body existed, and is
accompanied by conduct rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person
making it, if it is relevant otherwise than as an admission.
19. Section 58 lays down that facts admitted need not be proved.
Proviso thereto lays down that the Courts may, in its discretion, require
the facts admitted to be proved otherwise than by such admissions.
Order 8, Rule 5 C.P.C. provides that allegation of fact in the plaint has to
be specifically denied. Proviso to sub-rule (1) thereof lays down that the
Court may, in its discretion, require any fact so admitted to be proved
otherwise than by such admission. I have already held that the
admission of the petitioner in paragraph 3 of the application, exhibit-
22/A is a self-serving admission.
20. In the case of Bai Kanku Vs. Shiva Toya, 17 Bmbay 624 (F.B.),
the Full Bench of this Court held that a decree for dissolution of
marriage cannot be made merely on admissions and without recording
any evidence. In the case of Sushila Mahendra Nanavati Vs.
Mahendra Manilal Nanavati, AIR 1960 Bombay 117, the Division
Bench of this Court held that under Order 8, Rule 5, it is well settled that
both the plaintiff as well as the defendant must be held bound by the
statement of facts in their respective pleadings. But under the proviso to
Order VIII, Rule 5, the Court may, in its discretion require any fact
admitted to be proved otherwise than by such admission. The proviso to
Section 58 of the Evidence Act is also to the same effect. In
matrimonial proceedings, there can be no judgment by default or
admission. Even in the case of Pranjali Bingi (supra), the learned
Single Judge of this Court held in paragraph 10 that merely because both
the parties have prayed for same reliefs of divorce, on the basis of
different set of facts, the Court does not get jurisdiction to pass order
under Order 12, Rule 6 C.P.C.
21. In the light of the aforesaid discussion, I am of the opinion that
the reliance placed by Mr. Lalwani on the above-referred decisions does
not advance the case of the petitioner. In my opinion, the Family Court
was right in holding that the petitioner was trying to take advantage of
her own wrong. In view thereof, no case is made out for invocation of
powers under Article 227 of the Constitution of India. Hence, Petition
fails and the same is dismissed. Rule is discharged. In the
circumstances, however, there shall be no order as to costs.
22. At this stage, Mr. Lalwani orally applies for stay of further
proceedings of Petition No.A-2405 of 2013 as also the counter claim
filed by the respondent therein for a period of eight weeks from today.
Mr. Moray opposes this application on the ground that during the
pendency of this Petition, there was no stay.
23. Having regard to the fact that the petitioner intends to challenge
this order before the higher Court, I find that the request made by Mr.
Lalwani is reasonable. Hence, notwithstanding dismissal of the petition,
further proceedings of Petition No.A-2405 of 2013 as also the counterclaim
filed by the respondent therein, shall remain stayed for a period of
eight weeks from today.
(R. G. KETKAR, J.)
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