Mon Mohan Kohli v. Natasha Kohli

12. Relying on Section 5, Ms.Luthra, submits that the marriage between the petitioner and the respondent is nullified as the respondent had a living spouse at the time of marriage with the petitioner and the respondent has played a fraud upon the court and is guilty of bigamy, perjury and contempt of court. It is contended that the respondent in reply to the application under Order 12 Rule 6 CPC, in the written statement and in the application seeking amendment of the written statement clearly establishes that there is clear and categorical admission made by the respondent with regard to the subsistence of her marriage with Mr.Kia Louis Boccagna, at the time of her marriage with the petitioner. In addition to the grounds raised by her that the decree dated 28.04.2008 is not binding or unenforceable in India under Section 13 of the Code of Civil Procedure.

13. Ms.Luthra, contends that the said decree was collusive in nature, barred by law of limitation and even otherwise a decree which has been declared as void ab initio could not have any binding effect on the third party, who would be affected. Ms.Luthra has placed reliance on Begins Vs. Begins 1958 555 for the said proposition.

14. Reliance is also placed on Smt. Padi & Ors. Vs. Union of India AIR 1963 Himachal Pradesh 16 (V 50 C[6]) and more particularly paragraph 3, which reads as under:

15. Ms.Luthra, has also strongly urged before this court that the decree of nullity which has been obtained by respondent from a foreign court is not binding on the petitioner. In support of her contention, learned senior counsel for the petitioner has relied on various judgments, which have been discussed in detail by the trial Court in the order dated 10.03.2010.

16. This petition is opposed by the respondent on the ground that the application filed by the petitioner under Order 12 Rule 6 CPC has been dismissed by way of a reasoned order, which requires no interference in proceedings under Article 227 of the Constitution of India. It is further submitted that the petitioner is in effect seeking review/ re-appreciation of evidence/ material before the trial court, which is not contemplated under Articles 226/ 227 of the Constitution of India, which only confers supervisory jurisdiction on the High Courts to examine whether an inferior court has proceeded within its parameters or not.

17. Mr.Rao, counsel for the respondent further submits that while exercising supervisory jurisdiction under Article 227 of the Constitution of India, the High Court does not act as an Appellate Court and cannot re-weigh or review the evidence on the basis of which the Court below has based its decision. Elaborating his argument further, Mr.Rao, counsel for the respondent submits that it has been repeatedly held that the jurisdiction under Article 227 of the Constitution of India cannot be used even to correct errors of law in the decision under challenge.

18. Counsel for respondent next contends that the impugned judgment has been passed by the trial court in an application filed by the petitioner under Order 12 Rule 6 of the CPC, and such a relief cannot be claimed as a matter of right, but only as a matter of discretion and this discretion cannot be interfered with unless there is gross abuse of the process and the trial court has reached a conclusion which no reasonable man could in the circumstances of the case. It is also the contention of counsel for the respondent that to entitle a party for a decree on admission, the admission has to be unequivocal, unambiguous, specific and positive. The pleadings cannot be looked into piecemeal or dissected, but are to be considered as a whole. The written statement in the present case raises triable issues, which go to the root of the matter.

19. Mr.Rao, submits that on 17th July, 2007 the petitioner had filed a petition under Section 11 of the Hindu Marriage Act, 1955 for a Decree of Nullity and in the alternative under Section 12(1)(C) for the Annulment of marriage between the petitioner and the Respondent on the ground that the respondent marriage with a person named Mr.Kai Boccagna was subsisting at the time of the marriage between the petitioner and the respondent in the year 1994. The respondent, on 24th October 2007, filed her Written Statement to the petition stating that although the respondent did get married to Mr.Kai Boccagna but the same was dissolved and in fact, Mr.Kai Boccagna had subsequently married a lady named Ms.Caryn de Philipo. However, in order to present the complete state of facts before the Hon‟ble Court, the Respondent also categorically stated in the Written Statement that the Respondent was in the process of ascertaining detailed facts regarding the marriage between the Respondent with Mr.Kai Boccagna as well as the date of its dissolution and as soon as the same were available with her, she would bring the same before the Hon‟ble Court by way of an amendment to the Written Statement. Thereafter, having come to know about the date of her marriage with Mr.Kai Boccagna and the fact that, contrary to what the respondent had been given to understand, the marriage between the Respondent and Mr.Kai Boccagna had still not been dissolved, the Respondent immediately moved the U.S. Court which after due consideration of the material on record before it, annulled the marriage of the Respondent with Mr.Kai Boccagna ab initio vide its Order dated 28th April 2008.

20. It is also submitted by Mr.Rao, counsel for the respondent that in order to bring this subsequent event of the U.S. Decree dated 28th April 2008 on the record of the learned trial court, the respondent moved an application under Order 6 Rule 17, Code of Civil Procedure, 1908 on 5th July 2008. It is pertinent to mention that this Application has been allowed by the learned trial court and remains unchallenged by the Petitioner.

21. After the amendment was allowed, the petitioner made an application under Order 12 Rule 6 CPC. It is strenuously urged before this court that when the first written statement was filed, the respondent had reserved her right to file an amendment to the written statement as and when she would come in possession of better particulars. The factum of annulment of marriage of respondent with Mr.Kia Louis Boccagna ab initio raises a triable issue for which evidence is required to be led and thus would not tantamount to admission within the meaning of Order 12 Rule 6 of the CPC.

22. I have heard counsel for the parties and carefully considered their rival submissions. Since both the parties have relied upon paragraph 6 of the written statement, it would be useful to reproduce the same:

23. It is also borne out from the record that the respondent had also in the meanwhile applied before the State Supreme Court of New York, County of Westchester, for a decree of annulment of her marriage with Mr.Kai Louis Boccagna, while alleging that consent of the respondent had been obtained by Mr.Kai Louis Boccagna, fraud and misrepresentation, and vide judgment dated 28th April, 2008, the Supreme Court of the State of the New York, County of Westchester, New York, granted the decree in the following terms: “ORDERED, ADJUDGED AND DECREED that the marriage contract heretofore existing between Natasha Kohli Plaintiff, and KAI L. BOCCAGNA Defendant is hereby annulled based on (DRL # 140 (e)) by the Defendant ab initio; and it is further ORDERED AND ADJUDGED that there is no award of maintenance and there is no marital property and therefore no findings with respect to equitable distribution; and it is further ORDERED AND ADJUDGED that the Plaintiff is authorized to resume use of her prior surname, to wit: Chatta and it is further ORDERED AND ADJUDGED that the Defendant shall be served with a copy of this judgment with notice of entry, by the Plaintiff, within 30 days of such filing.”

24. Ms.Luthra, learned senior counsel for the petitioner has very strongly urged before this court that reading of the written statement can only lead to one single conclusion that the marriage between the respondent and Mr.Kai Louis Boccagna was subsisting when she married to the petitioner and thus the application under Order 12 Rule 6 CPC should have been allowed and a judgment should have been passed on admission. The learned trial court has passed a detailed judgment and has considered the rival contentions of the parties, the judgments relied upon by the parties and has correctly applied the law to the facts of the present case.

25. While it is the case of the petitioner that the admissions of the respondents are clear and categorical and the respondent has admitted her marriage with Mr.Kia Louis Boccagna, and non-consummation of marriage would not render her marriage with Mr.Kia Louis Boccagna, as a nullity, it also the case of the petitioner that the divorce based on the judgment of the New York Court is not on merits and it is an ex parte decree, which cannot be recognized in India. This argument of counsel for the petitioner is unacceptable on the ground that it is only open to Mr.Kia Louis Boccagna, to raise a defence that the decree obtained from New York Court is an ex parte decree and not for the petitioner. The decree is very much binding on the respondent and Mr.Kia Louis Boccagna, till it is set aside.

26. Without making any observations on the merits of the matter, since the matter is pending before the trial Court for adjudication on merits, the petitioner cannot gain any advantage by reading a few lines of the written statement, as the written statement or any document sought to be relied upon for the purpose of judgment on admission is to be read as a whole, moreover the marriage between the respondent and Mr.Kia Louis Boccagna, has been declared as null and void, ab initio and prima facie being a decree in rem would also bind the petitioner herein.

27. Whether the marriage of respondent with Mr.Kia Louis Boccagna, was a marriage at all in the eyes of law and the legal effect of the declaration and whether the declaration relates back to the date of the marriage is a complex triable issue which cannot be decided in an application under Order 12 Rule 6 CPC. Even the question raised by the petitioner with regard to the validity and effect of the foreign judgment is an issue which is closely related to the first question and in the facts of this case inseparable for the reason that the order is under challenge has been passed on an application under Order 12 Rule 6 CPC. There is no quarrel with the argument of counsel for the petitioner that the court can pass a decree even on constructive admission, as has been held in the case of Surjit Sachdev Vs. Kazakhstan Investment Services Pvt. Ltd. -66 (1997) DLT 54, 59. There is also no quarrel with the proposition that the object of Order 12 Rule 6 CPC is to enable a party to obtain speedy judgment as held in the case of Uttam Singh Vs. Union Bank of India AIR 2000 SC 2740. But the court cannot lose track of the fact that an order under Order 12 Rule 6 CPC is a discretionary order and not to be passed as a matter of right in every matter and admission has to be categorical, specific, unequivocal, unambiguous and a document sought to be relied upon has to be read as a whole and not in part [See R.K. Markan Vs. Rajiv Kumar Markan 97 (2002) DLT 754 and Arun Kumar Jain & Anr. Vs. Raghubir Saran Charitable Trust & Ors. – 144 (2007) DLT 43]. In the case of Jasbir Sobti & Ors. Vs. Surender Singh 135 (2006) DLT 658, it was held that the judgment on admissions is not a matter of right and is a matter of discretion of the court and further that where the objection will go to the root of the matter, it would not be appropriate to exercise discretion.

28. Counsel for the respondent has also relied upon the case of Daljit Singh Anand Vs Harjinder Singh Anand- 149 (2008) DLT 303, while submitting that the written statement and the other averments have to be read as whole and the split vision is not permissible, while entertaining an application under Order 12 Rule 6 of the Code of Civil Procedure. Reliance is also placed on Parivar Seva Sansthan Vs Veena Kalra, 86 (2000) DLT 817, wherein it has been held that where triable issues, going to the root of the case, are raised, the Court should proceed to try the issues raised and return the findings on merits. In the case of Baljit Kaur Vs United Insurance Company Ltd. 70 (1997) DLT 742, it has been held that a judgment under Order 12 Rule 6 is a matter of discretion and not a matter of right and when a case involves question which cannot be conveniently disposed of on a motion, under the rule, the court may, in the exercise of discretion, refuse the motion. In the case of Shri Mohan Prasad Jha Vs Shri Shambhu Prasad Jha -82 (1999) DLT 281, it has been held that the provision cannot be resorted to cut short a litigation when factual disputes are raised between the parties and when there is no clear and unequivocal admission in respect of a particular fact in the written statement. Counsel for respondent has also relied upon the case of Express Towers P Ltd. and Anr Vs Mohan Singh -2007 (97) DRJ 687, wherein the Court has observed that under Order 12 Rule 6, a decree can be passed when admissions are clear and unambiguous and no other interpretation is possible and that the Court is vested with a right to ask for independent corroboration of facts, even when denial in the pleadings is not specific. The Hon‟ble High Court has further held that when a case involves disputed questions of fact and law, which require adjudication and decision, resort to judgment under Order 12 Rule 6, may not be safe and correct.

29. The trial court has considered the rival contentions between the parties in great detail and the application under Order 12 Rule 6 CPC has been rejected while noticing that though there is admission of the previous marriage there are other circumstances calling for trial of the case. The same has been enumerated in para 35 of the judgment, which is reproduced below: “a) Foreign Law is a question of fact, as can be deciphered from Section 45 of Evidence Act, and without meaning any offence to the propositions of Law cited before this Court, the same are too contentious to be dealt with in an application U/o 12 Rule 6 CPC. Various inferences emerge from the circumstances pleaded by the parties. Considering the law cited by both the parties, their (sic. there) appear a diversity of opinion in relation with the date from which such decree is to take effect. There are other variables, in as much as, it is yet to be seen that whether the decree, in principle, is a decree of annulment of “voidable marriage” or a declaration as to a “void marriage” regard being given to the case propounded by the Respondent before the U.S. Court. Besides, the effect of decree by the U.S. Court, would also vary, dependent upon whether it is a decree on „merits‟ of the case and whether it takes into its sweep, the marriage of the parties to the petition, contracted before the grant of such decree. It is not the case that no opinion can be made at this stage, but what transpires is the fact that once the parties are put to trial and test of examination, the Court would be able to come at a definite, or at least better conclusion. b) The marriage as per the Hindu philosophy is a sacrament and considering the scheme of the Act, the Court has to remain alive to the sanctity of the institution. The Court, at the same time, cannot be oblivious of the fact that the same cannot be viewed as merely a contract, which may be the case under the European Law. c) The admission of the respondent as regards her marriage with Mr.Boccagna, cannot be viewed or considered as dissected from her stand that the decree dated 28.04.2008 nullifies the marriage, as void ab initio. Veracity of her stand cannot be gone into at this stage, nor the same can be brushed aside in view of the law relied upon by the petitioner side. d) The decree by the U S Court, rules that the marriage between the respondent and Mr.Boccagna was declared null and void ab initio, and the same cannot be inferred lightly. Whether or not the same is in collusion or obtained upon fraud is a pure question of fact which can only be dealt with in trial.

30. This court in the case of Classic Equipments (P) Ltd. Vs. Johnson Enterprises & Ors. 2010 (2) R.A.J. 406 (Del) had an occasion to deal with the scope and power of the High Court under Article 226 of the Constitution. There is no doubt that the powers of the High Court are very wide, but the High Court must ensure that the same are to be exercised not as a court of appeal. It was further held that the High Court should be slow to interfere unless there is grave miscarriage of justice. Relevant portion of the judgment reads as under:

40. Even prior to Chandavarkar[1] in Bathutmal Raichand Oswal v. Laxmibai R. Tarta[2] dealing with the supervisory power of a High Court under Article 227 of the Constitution, Bhagwati, J. (as His Lordship then was) stated: (Bathutmal Raichand Oswal case[2], SCC pp. 864-65, para 7)

41. In State of Maharashtra v. Milind[3] this Court observed: SCC p. 29, para 33)

42. In State v. Navjot Sandhu[4] this Court reiterated: (SCC pp. 656-57, para 28)

31. Applying the settled law to the facts of this case, I am of the view that the trial Court has passed a reasoned order, keeping in view the law and facts of the present case. The trial Court has further stated detailed reasons in paragraphs 35 of the judgment, which have been reproduced in the paras aforegoing why trial in the case would be necessary.

32. I see no reason to take a different view in the matter. Moreso, as this is a family matter and cannot be equated with the commercial matter. In family matters, the Court must tread carefully and leave no room for doubt as in the present case, and if it is held that a valid marriage subsisted when the respondent married the petitioner, it would have far reaching consequences, hence, it would be appropriate that the matter is decided by a competent Court after recording evidence rather than in an application under Order 12 Rule 6 CPC. Similar view has been expressed by the Apex Court in a recent decision rendered in Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad & Anr decided on 12.12.2012 in somewhat different facts, the wife had filed an SLP challenging the order of the High Court. In the said case, the appellant was married to the respondent in the year 2006. She filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2006, seeking certain reliefs including the maintenance, wherein interim maintenance was granted which was affirmed by the Sessions Judge, against which the husband filed a writ petition before the High Court, seeking recall of the order on the ground that he came to know subsequently that his marriage with the appellant was void on the ground that at the time of said marriage the appellant was married to one Rohit Kumar Mishra. The certificate of marriage between the appellant the Rohit Kumar Mishra was placed on record. The writ petition filed by the husband, was allowed, however, the Supreme Court set aside the order of the High Court. Relevant paragraphs of the judgment read as under:

19. In the present case, if according to the respondent, the marriage between him and the appellant was void on account of the previous marriage between the appellant and Rohit Kumar Mishra the respondent ought to have obtained the necessary declaration from the competent court in view of the highly contentious questions raised by the appellant on the aforesaid score. It is only upon a declaration of nullity or annulment of the marriage between the parties by a competent court that any consideration of the question whether the parties had lived in a “relationship in the nature of marriage” would be justified. In the absence of any valid decree of nullity or the necessary declaration the court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage. We would also like to emphasise that any determination of the validity of the marriage between the parties could have been made only by a competent court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the courts, including the High Court, to render a complete and effective decision with regard to the marital status of the parties and that too in a collateral proceeding for maintenance. Consequently, we hold that in the present case until the invalidation of the marriage between the appellant and the respondent is made by a competent court it would only be correct to proceed on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all benefits and protection available under the DV Act, 2005.

20. Our above conclusion would render consideration of any of the other issues raised wholly unnecessary and academic. Such an exercise must surely be avoided.”

33. In this matter highly contentious issues have been raised by the parties which can best be decided on evidence.

34. In view of above, no grounds are made out to interfere in the judgment passed by learned trial court on 10.03.2010. The present petition and the application are accordingly, dismissed.

35. At this stage, counsel for the petitioner submits that a direction should be issued to the trial court for day-to-day hearing in the matter. The ordersheets have been perused, which have been produced in court, which shows that the trial court has already been giving short dates in the matter and both the counsel are pursuing the matter without any unnecessary adjournment. However, having regard to the age of the petitioner, the trial court is directed to dispose of the matter, expeditiously. G.S.SISTANI, J JANUARY 17, 2013 ssn