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2008 DIGILAW 408 (CAL)

Rajendra Kumar Jajodia v. Puja Jajodia (Nee Roy)

2008-04-17

SANJIB BANERJEE

body2008
ORDER :- The plaintiff seeks a divorce on the apparent admission in pleadings by the wife. The husband says that in view of the averments in the written statement and in the affidavit-in-opposition to the present petition, there is admission of the irretrievable breakdown in the marriage that is writ large for a decree that he longs for to be made well ahead of the trial. 2. The husband has relied on paragraphs 2, 3 and 4 of the written statement and a sentence each from paragraphs 14 and 16 thereof for the immediate judgment that he desires : "2. The parties were married to each other in 1991 and since then the petitioner is treating the respondent with extreme cruelty. The petitioner has also deserted the respondent and their child, Raveera. The petitioner has refused to accept the child as his own in view of the fact that she is an adoptive child. There has at such occurred irretrievable break down of marriage. Reconciliation between the parties has become impossible." "3. The respondent in view of the extremely bitter relationship between the parties, had agreed to divorce the petitioner on condition that the petitioner makes payment of a sum of Rs. 20 lakhs (Rupees twenty lakhs) as permanent alimony and Rs. 10,000/- (Rupees ten thousand) per month for maintenance of the child, Raveera. This amount shall be needed by the respondent for her upkeep and for the purpose of bringing up the child. The petitioner however refused to make payment of such money and is insisting upon divorce, without making payment of such amount, which the petitioner is not ready to accept." "4. If at all divorce ought to be granted, the same should be granted at the request of the respondent for reason of the cruelty meted out by the petitioner to the respondent." "14..........I agree that it has come to a point that it is no longer possible (for) me to co-exist with the petitioner." "16............I state that I have been living apart from the petitioner for more than a year and I am happy to stay this way." 3. The husband also refers to sub-paragraphs 2(b), 2(e) and 2(f) of the affidavit used by the wife in the present proceedings. The husband also refers to sub-paragraphs 2(b), 2(e) and 2(f) of the affidavit used by the wife in the present proceedings. At paragraph 2(b) the wife says that it is for the plaintiff to prove to the satisfaction of the Court that grounds for divorce exist and such is the mandatory requirement of law. She says that the onus is on the husband to prove the grounds that he alleges and no summary decree on the basis of "purported admissions" can be made. She asserts at paragraph 2(e) that in her written statement she has denied what the plaintiff has alleged in the plaint. She adds that the plaintiff and his family members had continuously mistreated and chided her for her inability to conceive a child which had led to the two growing, and ultimately, living apart. The wife has complained of the husband's continuing misbehaviour both towards her and their adopted daughter. At paragraph 2(f) she says that it was the plaintiff who had deserted her and their child without any bona fide reason. At paragraph 6 of her affidavit, the wife has denied the admission that the husband has attempted to cull out from her written statement. 4. The wife does not agree to the decree that the husband craves, insists that she does not consent to the grant of divorce against receipt of a sum of Rs. 20 lakh and claims that the plaintiff is liable to pay maintenance for their adopted daughter. The wife says that she is willing to live with her husband but her husband has to mend his ways. 5. The plaintiff refers to a judgment reported at AIR 1965 SC 364 (Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati) and submits that a decree for divorce may be granted on admission. Paragraphs 19 to 24, 27 and 28 of the report have been placed. The matter reached the Supreme Court on a certificate granted by the Bombay High Court in proceedings for annulment of the marriage under Section 12 of the Hindu Marriage Act, 1955 on the ground that the wife was, at the time of marriage, pregnant by some person other than the husband. The case hinged on the wife's assertion of pre-marital sex with her would-be husband after Christmas of 1946 and in the middle of the following January. The case hinged on the wife's assertion of pre-marital sex with her would-be husband after Christmas of 1946 and in the middle of the following January. The parties were married on March 10, 1947 and a daughter was born to the wife on August 27, 1947. 6. The trial Court allowed the petition for annulment of the marriage upon finding that the wife had not established that she had been made pregnant by her would-be husband. In the wife's appeal, the High Court agreed with the trial Court in its finding that the wife had failed to prove that she had been made pregnant by her would-be husband but also held that the husband had not proved that the wife had been made pregnant by someone other than him and remitted the matter to the trial Court upon framing two issues. The trial Court received further evidence, recorded its findings and submitted the findings to the High Court. The High Court allowed the wife's appeal and dismissed the petition. 7. In the appeal by certificate, the Supreme Court held at paragraphs 19 to 22 as follows : "19. The High Court is certainly right in stating that the petitioner had, in order to succeed, to prove beyond reasonable doubt that the respondent was pregnant by someone else at the time of marriage. It is, however, not correct in law in holding that the Court, in these proceedings, could in no circumstances base its decision on an admission of the parties. On the facts of the present case, however, the decision did not rest on the admissions of the parties alone. "20. In White v. White this Court construed the expression "satisfied on the evidence" in Section 14 of the Divorce Act and said at p. 1420 : "The important words requiring consideration are 'satisfied on the evidence'. On the facts of the present case, however, the decision did not rest on the admissions of the parties alone. "20. In White v. White this Court construed the expression "satisfied on the evidence" in Section 14 of the Divorce Act and said at p. 1420 : "The important words requiring consideration are 'satisfied on the evidence'. These words imply that the duty of the Court is to pronounce a decree if satisfied that the case for the petitioner has been proved but dismiss the petition if not so satisfied........and it has been there held that the evidence must be clear and satisfactory beyond the mere balance of probabilities and conclusive in the sense that it will satisfy........the guarded discretion of a reasonable and just man." It approved of the observations in Preston Jones v. Preston Jones (1951) AC 391 to the effect that it would be quite out of keeping with the anxious nature of the provisions to hold that the Court might be 'satisfied' in respect of a ground for dissolution, with something less than proof beyond reasonable doubt. The Court further observed at p. 1421 : "In a suit based on a matrimonial offence it is not necessary and it is indeed rarely possible to prove the issue by any direct evidence for in very few cases can such proof be obtainable." "21. It follows that what the Court has to see in these proceedings is whether the petitioner has proved beyond reasonable doubt that the respondent was pregnant by someone else at the time of marriage. The petitioner has to establish such facts and circumstances which would lead the Court either to believe that the respondent was pregnant at the time of marriage by someone else or to hold that a prudent man would, on those facts and circumstances, be completely satisfied that it was so. "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. 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 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." 8. The Supreme Court thereafter noticed Section 58 of the Evidence Act which permits an admission to be culled out by any rule of pleading in force. Such rule of pleading was found in Order VIII, Rule 5 of the Code of Civil Procedure. It observed that such provisions vest discretion in Court to require any fact to be proved otherwise than by admission, but referred to Order XII, Rule 6 of the Code and opined that there was no good reason for the view that the Court could not act upon the admissions of the parties to proceedings under the Hindu Marriage Act. The Supreme Court, however, cautioned that the rule of prudence of not indulging in unnecessary adjudication upon admission needs to be tempered if the law requires a satisfaction to be recorded by the Court on a matter. It added that admissions are to be ignored on grounds of prudence only when the Court, upon appreciation of facts, is of the opinion that the admission is born of collusion. The principle is that if there be no reason to suspect collusion, it would be proper for the Court to act on the admission without requiring the fact admitted to be proved. 9. To complete the Nanavati saga, the Supreme Court found that upon the wife having initially alleged that the child was conceived in December, 1946 or January, 1947, she could not be allowed to urge subsequently that the child had been borne after the marriage and was pre-mature at birth. 10. 9. To complete the Nanavati saga, the Supreme Court found that upon the wife having initially alleged that the child was conceived in December, 1946 or January, 1947, she could not be allowed to urge subsequently that the child had been borne after the marriage and was pre-mature at birth. 10. The plaintiff next refers to a judgment reported at AIR 1972 P and H 29 (Smt. Shakuntla Tandan v. Sardari Lal Tandan) and places paragraph 3 of the report to suggest that the principle recognised in Order XII, Rule 6 of the Code may be applied to matrimonial proceedings. A judgment reported at (2007) 2 SCC 263 (Rishikesh Sharma v. Saroj Sharma) is relied upon by the husband to suggest that if the Court finds allegations and counter-allegations levelled against the other by the parties to the marriage, the Court may conclude that it would not be possible for the parties to live together and bring peace to their lives by dissolving the marriage. The plaintiff has also mentioned, in passing, to the Naveen Kohli v. Neelu Kohli judgment reported at (2006) 4 SCC 558 : AIR 2006 SC 1675 where the Supreme Court granted a decree for divorce on the ground of irretrievable breakdown of marriage and commended the Parliament to amend the Hindu Marriage Act by incorporating irretrievable breakdown as a statutory ground for divorce. It appears that in both the Kohli and the Sharma cases, the orders were passed in exercise of powers available to the Supreme Court under Article 141 of the Constitution of India. Such authority is not accessible to lesser fora. 11. In the Nanavati matter, the Supreme Court did not permit the wife to resile from a case that she had initially run. Her subsequent change of track to allege that the daughter had been begotten after marriage was at stark variance with what she had initially claimed. The emphasis on the initial case by the Supreme Court has to be judged in the context of that which was subsequently claimed by the wife. It was not an admission of indebtedness in a money claim which a party afterwards sought to wriggle out of on the allegation that it was unmindful of other facts or material when it made the admission. The wife had alleged that she was pregnant after engaging in sexual intercourse in December, 1946 or early January, 1947. It was not an admission of indebtedness in a money claim which a party afterwards sought to wriggle out of on the allegation that it was unmindful of other facts or material when it made the admission. The wife had alleged that she was pregnant after engaging in sexual intercourse in December, 1946 or early January, 1947. It is inconceivable that she would discover a few years down the line that she was pregnant only after March of 1947. Such retraction would have amounted to disowning an unmistakable physical change and the unforgiving biology of her body. The Supreme Court did not allow the wife to withdraw from a position she described of herself, a matter where nothing extraneous but her body was involved. It is the enormity of the effect of her retraction that the Supreme Court frowned upon and it is to this that the principle must be confined. 12. Even if one were to disregard that the admission sought to be relied upon in the present case is to obtain a decree for divorce and test the proposition on the arithmetic of admission in accounts, the plaintiff would fail. For an admission to be made the basis of a decree in a claim in money, the net indebtedness of the person admitting should accompany the admission. It will not do for the plaintiff to clutch at the defendant's admission that a certain amount as claimed by the plaintiff was due in respect of one transaction, if the defendant can show that there were sums due from the plaintiff to the defendant in respect of other transactions. 13. In the present action, founded solely on cruelty as the plaintiff submits, the husband has to succeed only upon establishing cruelty on the wife's part. The admission that is referred to by the husband is demonstrably a counter-charge of cruelty by the wife against the husband. What the husband insists on is that the written statement be read as an admission of irretrievable breakdown of marriage for a decree of divorce to follow, but that is not to be. For one, notwithstanding Kohli, the Parliament has not included irretrievable breakdown of marriage as a statutory ground for divorce. For a second, this Court does not have the plenary powers under Article 141 of the Constitution. For one, notwithstanding Kohli, the Parliament has not included irretrievable breakdown of marriage as a statutory ground for divorce. For a second, this Court does not have the plenary powers under Article 141 of the Constitution. For a third, even if irretrievable breakdown of marriage be read into the statute as a ground for divorce, a Court cannot jump to such a conclusion ahead of the trial. Lastly, the plaintiff does not show that he had cited irretrievable breakdown of the marriage as a ground in the plaint for any constructive admission thereof to be gleaned from the written statement. 14. In the third paragraph of the written statement the wife says that she had agreed to a divorce on condition of certain payments being made but the husband then refused to make the payment. As would appear from her affidavit, the wife claims that on the basis of her written statement, the husband had forwarded a cheque for Rs. 20 lakh to her lawyer which she says her lawyer was not authorised to receive without her instructions. Such cheque, she says, has been returned. The essence of what the wife says is that she had once succumbed to agree to a divorce upon payment of Rs. 20 lakh lumpsum and a monthly amount of Rs. 10,000/-for the child's maintenance, but since the husband was not willing to part with such money the offer fell through. It would not do, she implies, for the husband to take her up on her offer some years or months later and hold her to a bargain that had failed upon it not being immediately accepted. 15. Though the husband may not comprehend why the wife should not be pinned down to her admission that she had once agreed to a divorce on a certain condition upon such condition now being met, there may be justification in her conduct. A decree for divorce is as much an undoing of marital misery as it is a charter to future course of action by either spouse; a door closing for another window to open up. At age 41 he may still retain his drive and urge to sire an offspring. At age 39 and with an infant, she may not perceive any light bright enough at the end of the tunnel to induce her to cross over. At age 41 he may still retain his drive and urge to sire an offspring. At age 39 and with an infant, she may not perceive any light bright enough at the end of the tunnel to induce her to cross over. It is understandable retaliation in small measure in the context of the litany of despair and the melancholy of her desolate marital life that she narrates in her written statement. He is guilty of cruelty and constructive desertion, she charges, but she stops short of asking for a divorce to be granted to her on the grounds that she urges. Her averments in the written statements are no admission of the plaintiffs case of cruelty but are counter allegations of spiteful behaviour scornfully made against her husband and her in-laws. Through every paragraph of her refreshingly unusual written statement prepared in first person, she expresses her outrage at a predator accusing the prey of stalking. There is admission of cruelty in the relationship, but one that is of no avail to the husband as either accuses the other of cruelty. 16. The wife complains of the husband's conduct, she laments at her suffering and grieves at the torment and discord in her matrimonial disharmony. There is no sequitur to her tirade; she does not seek a divorce though in the third paragraph of her written statement she insists that she would be entitled to divorce if she sought it by citing the husband's treatment of her. The admission that the plaintiff searches for is of divorce, not of cruelty in the relationship. The admission that the plaintiff finds in the written statement is of mutual abhorrence and disgust, but there is no admission as to divorce in the wife's odium. 17. The husband may yet succeed at the trial and the Kohli dictum may then be of use to him. But if the wife, despite her revulsion towards him, resists the shortcut to a decree that the husband demands, it must be recognised that she does not sanction his immediate charter for freedom or bliss. And this he must contend with for the moment. 18. The petition fails. The husband will pay costs assessed at 1500 GMs to the wife. The parties should take expeditious steps to make the suit ready for hearing. And this he must contend with for the moment. 18. The petition fails. The husband will pay costs assessed at 1500 GMs to the wife. The parties should take expeditious steps to make the suit ready for hearing. Documents may be discovered within four weeks, inspection forthwith thereupon and the plaintiff will have liberty to pray for an early listing of the suit. 19. Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities. Petition dismissed.