Calcutta High Court (Appellete Side)
For The vs Leela Jetly) And (2009) on 8 February, 2012
Author: Dipankar Datta
Bench: Dipankar Datta
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08.02.2012 C.O. 192 of 2012
Mr. Sabyasachi Chowdhury
Mr. R.K. Yadav
......... for the petitioner.
Mr. D.K. Singh
...... for the opposite party.
1. The petitioner filed an application under Section 25
of the Special Marriage Act, 1954 before the learned
District Judge, 24 Parganas (South) at Alipore in the
last week of April, 2011, registered as MAT Suit No.
969 of 2011. She alleged therein that the
respondent was madly in love with her and
threatened to commit suicide, if she spurned his offer to marry her. Unable to withstand the mental pressure created by the respondent, she succumbed to his wishes despite objections from her parents and a marriage between them was registered. Relevant portions from the said application read as follows:
"11) ****** On May 11, 2010, respondent took your petitioner in the office of the Marriage Registrar at Dum Dum and marriage between your petitioner and the respondent was registered. ******.
15) Since the registration of the purported marriage the petitioner and the respondent 2 did not stay together for even a single day.******
20) ***** Your petitioner has never cohabited with the respondent and the purported marriage between your petitioner and the respondent has not been consummated.
21) That your petitioner and the respondent never resided together even after May 11, 2010. There was and is no occasion for the respondent and the petitioner to consummate the purported marriage. Your petitioner states that the marriage is null and void and your petitioner has avoided the same."
2. Based on such pleadings, the petitioner prayed for the following relief:
"In the premises, your petitioner, most humbly prays that the purported marriage solemnized between the petitioner and the respondent on May 11, 2010 is a nullity and be declared as null and void."
3. The opposite party filed his written statement on November 17, 2011. The marriage between the parties under the Act was not denied. However, the opposite party alleged that it was the petitioner who was madly in love with him and he had to marry her under pressure since she threatened to commit suicide. There was no denial of the assertion of the petitioner that the marriage between the parties was not consummated. The opposite party did not deal with paragraph 20 of 3 the application at all. On the contrary, he pleaded in paragraphs 21 and 22 thereof, as follows:
"21. Despite all the facts as narrated hereabove, I state and submit that since the petitioner is not inclined to lead marital life with me, hence, I accord my consent to the prayer made by the petitioner for annulling the marriage registered between the Petitioner and the Respondent on May 11, 2010 be declared null and void.
22. That on the above submission the suit be decreed on consent."
4. It was at this stage that the petitioner filed an application under Order 15 Rule 1, Civil Procedure Code read with Order 8 Rules 3 and 4 and Order 12 Rule 6 thereof.
5. The learned Judge of the trial Court upon hearing the parties by order no. 10 dated December 21, 2011 rejected the application holding that Order 12 Rule 6 of the Code is not attracted since there is no clear and unequivocal admission of the petitioner's claim by the respondent.
6. This order is the subject matter of challenge in the present revisional application under Article 227 of the Constitution at the instance of the aggrieved petitioner.
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7. Mr. Chowdhury, learned advocate representing the petitioner, by referring to the statutory provisions contained in the Code contended that the learned Judge was completely in error in refusing relief claimed by her.
8. He referred to Section 25 of the Act, which lays down that a marriage solemnized under the Act shall be a nullity and may be annulled by a decree of nullity if the marriage is not consummated owing to the refusal of the respondent to consummate the marriage. It was contended that neither the assertions made by the petitioner regarding non-consummation of marriage at various places of the application were denied nor did the respondent make any assertion that the marriage had, in fact, been consummated. Citing the decisions of the Supreme Court reported in (2008) 7 SCC 85 (Gautam Sarup v. Leela Jetly) and (2009) 11 SCC 545 (Seth Ramdayal Jat v. Laxmi Prasad), he sought to contend that a vague or evasive denial may be treated to be an admission and on the basis thereof a suit, having regard to the provisions of Order 12 Rule 6 of the Code, may be decreed on admission.
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9. Reliance was also placed by him on the decision of the Supreme Court reported in AIR 1965 SC 364 (Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati) for the proposition that although divorce cases are not to be decided merely on the basis of admission of the parties, for they may be prone to make collusive statements admitting allegations against each other to gain a common object that both desire for personal reasons, yet, the Court can reach a satisfaction whether a certain fact has been proved or not even on the basis of admissions of the parties, either oral or documentary, led in the case and there is no good reason to hold that the Court cannot act upon the admissions of the parties in divorce cases.
10. He also drew attention of the Court to the Bench decision of this Court in MANU/WB/0279/2009 (Munmun Ghosh v. Tarun Kumar Malik). It was ruled therein that the allegation that the marriage between the parties was not consummated cannot be proved by giving any positive evidence and even if the Court is inclined to satisfy itself, the petitioner cannot be expected to prove her assertion except by her oral evidence.
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11. He further contended that the opposite party did not demonstrate that he was a person under disability and since no disability was proved, the learned Judge could have proceeded on the basis that the claim of the petitioner had been admitted in terms of Rule 5 of Order 8.
12. Next, referring to Order 14 Rule 1 of the Code, it was submitted that whether or not the marriage between the parties has been consummated would not at all be an issue in the suit as the allegation of the petitioner that the marriage had not been consummated was not denied and, therefore, judgment on admission ought to have followed without further arguments.
13. He, accordingly, prayed for setting aside of the order under challenge and for a decree of nullity based on the pleadings of the parties.
14. Mr. Singh, learned advocate appearing for the opposite party, did not advance any submission of worth touching the merits of the order impugned. He, however, submitted that the Court may dissolve the marriage between the parties having regard to the facts and circumstances of the case.
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15. This Court has heard learned advocates for the parties and perused the decisions cited by Mr. Chowdhury.
16. Circumstances leading to the marriage between the parties and their conduct thereafter, as appears from their respective pleadings, are no doubt fishy. It is difficult to believe one version and disbelieve the other. That would have been a matter for decision by the trial Court, after full-fledged trial, if at all the opposite party had raised contentious issues requiring due consideration by the learned Judge. However, the situation at present does not warrant a full-fledged trial in view of the evasive denials of the opposite party.
17. In Mahendra Manilal Nanavati (supra), the Supreme Court observed as follows:
"22. It is true that in divorce cases under the Divorce Act of 1869, the Court usually does not decide merely on the basis of the admissions of the parties. This is a rule of prudence and not a requirement of law. That is because parties might make collusive statements admitting allegations against each other in order to gain the common object that both desire for personal reasons. A decision on such admissions would be against public policy and is bound to affect not only the parties to the proceedings but also their issues, if any, and the general interest of the society. Where, however, there is no room for supposing that parties are colluding, there 8 is no reason why admissions of parties should not be treated as evidence just as they are treated in other civil proceedings. The provisions of the Evidence Act and the Code of Civil Procedure provide for Courts accepting the admissions made by parties and requiring no further proof in support of the facts admitted.
23. Section 58 of the Evidence Act inter alia provides that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which by any rule of pleading in force at the time they are deemed to leave admitted by their pleading. Rule 5 of O. VIII, C.P.C. provides that every allegation of fact in that plaint it not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant shall be taken to be admitted except as against a person under disability.
24. Both these provisions, however, vest discretion in the Court to require any fact so admitted to be proved otherwise than by such admission. Rule 6 of O. XII of the Code allows a party to apply to the Court at any stage of a suit for such judgment or order as upon the admissions of fact made either on the pleadings or otherwise he may be entitled to, and empowers the Court to make such order or give such judgment on the application as it may think just. There is therefore no good reason for the view that the Court cannot act upon the admissions of the parties in proceedings under the Act."
(underling for emphasis by this Court)
18. The view taken by the learned Judge, in view of the pleadings in the written statement filed by the respondent, does not appear to this Court to be sustainable in law. The decisions in Mahendra Manilal Nanavati (supra), Gautam Sarup (supra) and 9 Seth Ramdayal Jat (supra) are authorities, based whereon the trial Court may even pronounce judgment treating vague or evasive denial of material facts as amounting to an admission of such fact. Merely because the opposite party did not plead in his written statement that the marriage between the parties was not consummated because of refusal on his part to consummate the marriage was no ground not to consider the prayer of the petitioner. It was not Order 12 Rule 6 of the Code in isolation that would have been applicable; applicability of the said provision ought to have been considered along with the other provisions, viz. Order 8 Rules 3, 4 and 5, Order 14 Rule 1 and Order 15 Rule 1. On conjoint reading of the said provisions vis-à-vis the pleadings in the plaint and the written statement, the trial Court ought to have posed the question before it as to whether the parties were at issue on the question of non-consummation of marriage for refusal of the opposite party to have the marriage consummated or not and whether it could have pronounced judgment based on the contents of the written statement.
19. The order impugned, accordingly, stands set aside. 10
20. The learned Judge is requested to consider the application afresh and pass a fresh order. As has been held in Mahendra Manilal Nanavati (supra), the Court may not proceed on the basis of admission of the parties if they are found to be in collusion. In course of reconsideration of the petitioner's application, the learned Judge shall bear this aspect in mind. It would be open to the learned Judge to interact with the parties to ascertain whether they have been colluding with each other or not. He shall also endeavour to ascertain as to whether the factual aspect contained in Section 25(i) of the Act stands satisfied or not. Depending on the satisfaction reached by him, an appropriate decree/order may be passed.
21. The revisional application stands allowed without order for costs.
Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) 11