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2011 DIGILAW 3331 (MAD)

S. Radhika v. V. Vijayaprakash

2011-07-19

K.VENKATARAMAN

body2011
JUDGMENT :- 1. C.R.P.No.1889 of 2011 has been filed by the petitioner challenging the order of the III Additional Judge of the Family Court, Chennai made in I.A.No.670 of 2011 in O.P.No.2901 of 2008, dated 26.04.2011. The said application was filed by the petitioner under Order 12 Rule 6 CPC to pass a decree of annulment of the marriage based on certain admission made by the respondent in the O.P filed by him. The admission, according to the petitioner is about the non-consummation of the marriage. 2. C.R.P.No.1890 of 2011 has been filed by the petitioner against the order dated 18.05.2011 of the very same learned Judge in allowing the memo filed by the respondent for withdrawal of the O.P filed by him viz., O.P.No.2901 of 2008. 3. The short background of the matter is set out here under: (a) The petitioner herein is the wife and the respondent is the husband. The marriage seems to have taken place between them on 20.08.2008. The respondent has filed O.P.No.2901 of 2008 against the petitioner for restitution of conjugal rights. Thereafter, he has filed O.P.No.3902 of 2010 for annulment of the marriage. The respondent thereafter sought to withdraw the O.P filed by him namely, O.P.No.2901 of 2008. The same was opposed by the petitioner on the ground that certain admission have been made by the respondent herein and he cannot be allowed to withdraw the aforesaid O.P filed by him. (b) That apart, the petitioner has filed an application in I.A.No.670 of 2011 in the O.P filed by the respondent under Order 12 Rule 6 CPC to pass decree of annulment of the marriage based on certain admission made by the respondent herein. The admission as stated already is about the non-consummation of the marriage in his O.P. 4. The learned counsel appearing for the petitioner strenuously contended that when an admission has been made by the respondent herein, in the proceeding initiated by him, an order shall be passed under Order 12 Rule 6 CPC. It is further contended by the learned counsel appearing for the petitioner that the respondent in his O.P has admitted the non-consummation of the marriage and hence the decree of annulment of the marriage shall be passed invoking Order 12 Rule 6 CPC. He has also relied on the conversation said to have taken place between the petitioner and the respondent through cell phone. 5. He has also relied on the conversation said to have taken place between the petitioner and the respondent through cell phone. 5. In this connection, the learned counsel appearing for the petitioner relied on the following decisions: i. AIR 2000 Supreme Court 2740, Uttam Singh Dugal and Co. Ltd., v. Union Bank of India and Others. ii. (1998) 1 Supreme Court Cases 278, Heeralal v. KalyanMal and others. iii. AIR 1982 CALCUTTA 17, Sukumar Banerjee v. Dilip Kumar Sarkar and others. iv. AIR 1972 P&H 29 , Shakuntla Tandan v. Sardari Lal Tandan. 6. I have carefully considered the submissions made by the learned counsel appearing for the petitioner. 6.1. Before adverting to the contention made by the learned counsel appearing for the petitioner, it would be desirable to extract Order 12 Rule 6 CPC, which reads as follows: "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 questions between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. 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. 2. The Court may also of its own motion make such order or give such judgment as it may consider just, having due regard to the admissions made by the parties. 3. Whenever an order or judgment is pronounced under the provisions of this rule, a decree may be drawn up in accordance with such order or judgment and bearing, the same date as the day on which the order or judgment was pronounced." The said provision no doubt makes it clear that whatever admission has been made in the pleadings, the Court may at any stage of the suit, either on the application of any party or of its own motion without waiting for the determination of other questions or arguments between the parties, make such order or give such judgment as it may think fit having regard to such admission. 6.2. 6.2. In the given case on hand, no doubt the respondent in his O.P has stated about the non-consummation of the marriage. In paragraph 4 of the O.P, it is stated that the petitioner and the respondent wanted to understand each other better and hence, they refrained from having sexual relationship. In other part of the O.P, the respondent herein has not admitted that there was non-consummation of the marriage because of the fault on him. That apart, the conversation said to have been taken place between the petitioner and the respondent through cellphone is relied on by the learned counsel appearing for the petitioner to prove that the respondent had liked another girl and he could not able to forget her and only out of the pressure from his mother, he married the petitioner. 6.3. The averment made in the O.P as well as the conversation said to have taken place between the petitioner and the respondent are the matters that have to be adjudicated at the time of the trial, where the parties can let in evidence. At this stage, the correctness or otherwise of the statement made by the petitioner and the correctness or otherwise of the conversation said to have taken place between the petitioner and the respondent cannot be gone into. If there is a clear admission, which is not contravened, then there cannot be any doubt about invoking Order 12 Rule 6 CPC. Because of the backdrop of the matter set out earlier, I am of the considered view that invoking Order 12 Rule 6 CPC by the petitioner, for passing a decree by the Court below for annulment of the marriage may not be proper or valid. 7. As far as the judgment relied on by the learned counsel appearing for the petitioner reported in AIR 2000 Supreme Court 2740, Uttam Singh Dugal and Co. Ltd., v. Union Bank of India and Others is concerned, much emphasis was placed on paragraph 12 which is usefully extracted here under: 12. As to the object of the Order XII, Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. Ltd., v. Union Bank of India and Others is concerned, much emphasis was placed on paragraph 12 which is usefully extracted here under: 12. As to the object of the Order XII, Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that "where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiffs is entitled. "We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed." 7.1. In view of the reasoning given in paragraphs 6.1 and 6.2, I am of the view that the judgment relied on by the learned counsel appearing for the petitioner reported in AIR 2000 Supreme Court 2740, Uttam Singh Dugal and Co. Ltd., v. Union Bank of India and Othersmay not be of any use to the petitioner. 8. As far as the judgment reported in (1998) 1 Supreme Court Cases 278, Heeralal v. KalyanMal and othersis concerned, that is the case where the defendant wanted to withdraw the averment made in the written statement. The Hon'ble Apex Court has held that when once an admission has been made in the written statement, it cannot be allowed to be withdrawn by the defendant. While dealing with an application filed under Order 6 Rule 17 and Order 15 Rule 1 and Section 115 of CPC, such finding was rendered by the Hon'ble Apex Court. In the case on hand, the respondent has not filed any application for withdrawal of the admission made in the O.P, but he wanted to withdraw the O.P itself. Hence, I am of the considered view that the aforesaid judgment may not be of any use to the petitioner. 9. In the case on hand, the respondent has not filed any application for withdrawal of the admission made in the O.P, but he wanted to withdraw the O.P itself. Hence, I am of the considered view that the aforesaid judgment may not be of any use to the petitioner. 9. As far as the judgment relied on by the learned counsel appearing for the petitioner reported in AIR 1982 CALCUTTA 17, Sukumar Banerjee v. Dilip Kumar Sarkar and others is concerned, much emphasis was placed on paragraph 6 which is usefully extracted here under: "6. The effect of the withdrawal from the suit is that the parties are left to the position which they occupied before the suit was filed. This view was taken in the case of Behari Lal v. Baran in (1894) ILR 17 All 53. In the Bench case of Sashi Bhusan v. Moti in AIR 1945 Cal 317 at p. 318 Sri Bijan Kumar Mookerjee presiding over the Bench has followed the aforesaid case of Behari Lal v. Baran (supra) and stated that when the Court grants leave to file a fresh suit or proceedings on the same cause of action, the withdrawn suit has no existence in the eye of law. It is available for no purpose and the parties are relegated to the position which they occupied before the suit was brought." 9.1. In the aforesaid decision, it has been held that withdrawal from the suit will leave the parties in the same position which they occupied before the suit was filed. The effect of withdrawal of the suit, according to the said judgment is that the parties are left in the position which they occupied before the suit was filed. In the case on hand, as stated already the respondent herein wants to withdraw the O.P that has been filed and the effect of it can be culled out or raised by the petitioner in the proceedings initiated by her in O.P.No.323 of 2009 or the O.P filed by the respondent husband namely, O.P.No.3902 of 2010. 9.2. One more aspect that has to be seen in the present case is that the respondent husband after withdrawal of the O.P filed by him has filed O.P.No.3902 of 2010, for annulment of the marriage between him and his wife. 9.2. One more aspect that has to be seen in the present case is that the respondent husband after withdrawal of the O.P filed by him has filed O.P.No.3902 of 2010, for annulment of the marriage between him and his wife. Equally, the petitioner herein has filed H.M.O.P.No.323 of 2009 before the Family Court at Chennai for declaration that the marriage held between her and her husband on 20.08.2008 is null and void. In such circumstances, even if the respondent is allowed to withdraw the O.P filed by him, it is not going to prejudice the petitioner in any manner since, the petitioner can very well point out the admission if any, made by the respondent in the O.P.No.2901 of 2008 initiated by him, which is sought to be withdrawn, before the Court where she has initiated subsequent proceedings, or her husband's subsequent proceedings. When that option is available to the petitioner, the petitioner cannot be said to have been aggrieved over the respondent's application for withdrawal of the proceedings initiated by him. 9.3. At this juncture, the learned counsel appearing for the respondent contended that when once an O.P is withdrawn by the respondent, the petitioner cannot rely on the said application. I am unable to accept the said contention of the learned counsel appearing for the petitioner. Even, if the O.P is withdrawn, whatever statement that has been made by the respondent herein will stand and the same can be taken advantage of by the petitioner. Thus, I am of the considered view that the apprehension raised by the learned counsel appearing for the petitioner on behalf of the petitioner is not well founded and has to be rejected. 9.4. One more aspect that has to be seen is that the respondent while withdrawing the O.P filed by him has not sought to withdraw the said O.P with a liberty to file another O.P. Neither the respondent has sought for it, nor the III Additional Judge, Family Court, Chennai has granted the said relief. The memo filed by the respondent has been accepted and he has been permitted to withdraw the O.P. 9.5. Hence, I am of the considered view that the aforesaid judgment will not have any effect on the present case on hand. 10.1. The memo filed by the respondent has been accepted and he has been permitted to withdraw the O.P. 9.5. Hence, I am of the considered view that the aforesaid judgment will not have any effect on the present case on hand. 10.1. As far as the judgment relied on by the learned counsel appearing for the petitioner reported in AIR 1972 P&H 29 , Shakuntla Tandan v. Sardari Lal Tandan is concerned, much emphasis was placed on the operative portion of the order which is usefully extracted here under: "On the basis of the admission made by the wife and the statement made by the husband, I am satisfied that issue No.2 pertaining to the failure on the part of the wife to comply with the decree for restitution of conjugal rights passed against her has been established in favour of the husband. As the wife admitted that she had not complied with the decree for restitution of conjugal rights because of the untenable ground of pendency of appeal in the High Court and no further evidence can be adduced to prove contrary to that admission the fact that she did try to comply with the decree, no useful purpose will be served in remanding the case for the evidence of the witnesses sought to be summoned by the wife being recorded by the trial Court." 10.2. It is the case where an appeal has been filed by the wife against her husband challenging the order passed in an application filed by the husband under Section 9 and 13(1-A) of the Hindu Marriage Act, 1955 for dissolution of the marriage between them. In those circumstances, while deciding the appeal, it has been held by the Punjab and Haryana High Court that if the admission made by the wife and the statement made by the husband satisfies the Court, pertaining to the failure on the part of the wife to comply with the decree for restitution of conjugal rights passed against her, the case of the husband has been established by him. The said judgment rendered in an appeal cannot be equated with the present position where the petitioner and the respondent stands. 10.3. In view of the same, I am of the considered opinion that the aforesaid judgment also may not be of any use to the petitioner. 11. The said judgment rendered in an appeal cannot be equated with the present position where the petitioner and the respondent stands. 10.3. In view of the same, I am of the considered opinion that the aforesaid judgment also may not be of any use to the petitioner. 11. Considering the overall circumstances referred to above, I am of the considered view that the rejection of the application filed by the petitioner under Order 12 Rule 6 CPC does not require any reconsideration by this Court, since there is no illegality or infirmity in the said order. Equally, the order of the learned Trial Judge in allowing the memo filed by the petitioner also does not require any interference by this Court. However, it is made very clear that the parties can adjudicate their rights in the later proceedings referred to earlier. 12. In fine, the Civil Revision Petitions stands dismissed. Consequently, connected miscellaneous petitions are closed. However, no order as to costs. 13. At this juncture, the learned counsel appearing for the petitioner submitted that the learned Judge of the III Additional Family Court, Chennai could be directed to dispose of the O.P filed by the petitioner as well as the respondent at the earliest. Taking note of the said submission, the learned Judge of the III Additional Family Court is directed to dispose of the O.P.Nos.323 of 2009 and 3902 of 2010 as expeditiously as possible, in any event, within a period of four months from the date of receipt of a copy of this order. I also make it very clear that both the petitioner and the respondent shall cooperate in the early disposal of the matter.