While setting the record straight, the Bombay High Court has in a most learned, laudable, landmark, logical and latest judgment titled Mansi Bhavin Dharani v. Bhavin Jagdish Dharani in Family Court Appeal No. 24 of 2022 With Interim Application No. 1854 of 2022 in the exercise of its civil appellate jurisdiction that was pronounced as recently as on March 24, 2023 has minced absolutely no words to hold that a family court cannot pass a divorce decree on admission assuming that the marriage is dissolved in the hearts and minds of the parties when the parties have not led any evidence or withdrawn their allegations each other. The divorce decree passed by the Family Court was thus set aside. The Court noted that none of the parties have led any evidence and also added that the Family Court could not have done guess work and concluded that the marriage was dissolved in their minds and hearts.
By the way, the Court added that when the parties agree for divorce and do not make allegations against each other, or withdraw any allegation made, they could have filed for a mutual divorce. The Court noted that however, no petition for divorce by mutual consent was filed in this case. The Court perused the affidavits that was filed by the wife and held that she made no admission for decree of divorce. Therefore, quite naturally, the Bombay High Court set aside the divorce decree and restored the petition to be heard on its own merits expeditiously.
At the very outset, this extremely commendable, cogent, composed and creditworthy judgment authored by a Division Bench comprising of Hon’ble Mr Justice RD Dhanuke and Hon’ble Ms Justice Gauri Godse of the Bombay High Court sets the ball rolling by first and foremost putting forth in para 2 that, “Admit. Respondent waives service. By consent, taken up for final disposal.”As we see, the Division Bench then unfolds in para 3 that, “By this Appeal filed under Section 19 of Family Court Act, 1984 the original Petitioner (Appellant) challenges the impugned Judgment and decree passed by the Principal Judge, Family Court Mumbai dated 17th February, 2022 thereby passing a decree partially to the extent of prayer clause (a) and whereby the marriage between the Petitioner and the Respondent is dissolved under Section 13(1)(ia) of the Hindu Marriage Act, 1955. The learned Family Court has however kept the Petition pending for the reliefs prayed in prayer clauses (b) and (c) to the Petition. So far as prayer clauses (b) and (c) are concerned, the clause (b) refers that the Respondent be directed to pay maintenance of Rs.80,000/- per month to Petitioner and her son; and clause (c) refers to costs of the present Petition to be granted in favour of the Petitioner.”
To put things in perspective, the Division Bench then envisages in para 4 while elaborating on the facts of the case that, “The Appellant and Respondent got married on 14th July, 2013 according to the provisions of Hindu Marriage Act, 1955. The dispute arose between the parties on 11th January 2017. There is a child out of the said wedlock between the parties. The child is born on 24th July, 2017. In the month of November, 2017, the Appellant fled M.J. Petition No.A-3037 of 2017 inter alia praying that the marriage between the parties solemnized on 14th July, 2013 be dissolved by a decree of divorce and also prayed that the Respondent be directed to pay maintenance of Rs.80,000/- per month to Petitioner and her son with cost of the petition in favour of the Petitioner. The said Petition was opposed by the Respondent by filing written statement in the month of January 2019 and the allegations of cruelty and other allegations were made by the Appellant against the Respondent were denied. In the month of April, 2021, the Respondent filed the Application inter alia praying for passing a decree of divorce on admission and the Respondent submitting to the decree and prayer clause (a) of the Petition. The said Application was opposed by the Appellant (Original Petitioner) by fling reply on 8th February, 2022. The learned Family Court passed a decree in terms of prayer clause (a) on 17th February, 2022 which is impugned by the Appellant (original Petitioner) in this Family Court Appeal.”
As it turned out, the Bench then states in para 9 that, “A perusal of Petition filed by the Appellant clearly indicates that there were serious allegations of cruelty made by the Appellant against the Respondent. There are various grounds raised in the Petition. The Appellant applied for a decree for divorce. The Appellant invoked Section 13(1)(ia) of the Hindu Marriage Act, 1955 against the Respondent.”
As we see, the Division Bench mentions in para 10 that, “A perusal of the written statement filed by Respondent No.1 would clearly indicate that the Respondent had denied the allegation of cruelty against the Appellant and had made counter allegations against the Appellant.”
Be it noted, the Division Bench notes in para 14 that, “We have perused the reply fled by the Appellant. A perusal of the said reply clearly indicates that the Appellant has referred to the written statement fled by the Respondent in which the Respondent had specifically prayed for dismissal of Petition with costs. It is the case of the Appellant that the Respondent had set up case of denial and thereby pressed for dismissal of Petition. The Appellant opposed the Application filed by the Respondent for the decree divorce on admission. In paragraph 6 of the said reply, it is stated that at the point of passing the decree, the status of the Petitioner and the Respondent would get severed as husband and wife. The Appellant shall not be wife of the Respondent after passing decree of divorce, thus order of maintenance and permanent alimony cannot be passed in favour of Appellant after passing decree of divorce. It is thus clear that the Appellant has not submitted to the decree of divorce under Order 12 Rule 6 of the Civil Procedure Code, 1908. Neither the Appellant-wife had withdrawn allegations of cruelty against the Respondent nor the Respondent has accepted the allegations of cruelty.”
Simply put, the Division Bench points out in para 15 that, “A perusal of Order 12 Rule 6 of CPC clearly indicates that where any party admits the facts by his / her pleadings or otherwise, orally or in writing, at any stage of the proceedings, against other party, on making an application against other party, under Order 12 Rule 6 of CPC, the Court is empowered to pass a judgment on admission where admission 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 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 admission.”
Frankly speaking, the Division Bench observes in para 16 that, “In our view, a decree under Order 12 Rule 6 can be made only if there is unequivocal admission of facts by the party without reserving any rights. A perusal of the written statement filed by the Respondent and the Application filed for decree of divorce on admission clearly indicates that he had clearly disputed the allegations of cruelty. The affidavit-in-reply filed by the Appellant to the application filed by the Respondent also clearly indicates that she had not given up the allegations of cruelty. Obviously, the prayer for maintenance would have bearing on the claim for decree of divorce granted by the Family Court on the Application made by the Respondent.”
Do note, the Division Bench notes in para 17 that, “In our view, the Family Court has misconstrued the submission made by the Appellant in paragraph 6 of the affidavit-in-reply. It is the case of the Appellant that after passing the decree of divorce the status of Appellant and Respondent would get severed as husband and wife and thus the order of maintenance and permanent alimony cannot be passed after passing of decree of divorce.”
Quite naturally, the Division Bench expounds in para 18 that, “We are not inclined to accept the submission of the learned counsel for the Respondent that the order of maintenance and permanent alimony could be passed in these circumstances also where decree on admission is granted by the Family Court in favour of the Appellant when the Appellant having given up the allegations of cruelty.”
Most significantly and most fundamentally, the Division Bench then minces absolutely no words to hold in para 19 that, “ A perusal of decree passed by the Family Court clearly indicates that though the Family Court has taken cognizance of Section 151 of CPC which provides for inherent jurisdiction of the Court, when there is no specific provision for passing such an order, the Family Court has passed the decree of divorce contrary to Section 151 of CPC by assuming that the Appellant and the Respondent are intending to separate as marriage has been dissolved in their mind and heart. None of the parties have led any evidence. Allegations and counter allegations are made against each other. The learned Family Court could not have done guess work and could not have come to the conclusion that the marriage was dissolved in their mind and heart while passing the decree of divorce. It is a common ground when parties agree for divorce and do not make any allegations against each other or withdraw allegations made against each other, the parties could have filed a Petition for mutual divorce. No such Petition for mutual divorce was filed.”
Most forthrightly, the Division Bench then points out in para 20 that, “In view of the fact that, there is a specific provision for passing decree under Order 12 Rule 6 of CPC on satisfaction of conditions provided under the said provision, the Family Court could not have invoked Section 151 of CPC.
The impugned order shows non application of mind on the part of the Family Court while passing decree of divorce by doing a guess work and without there being any evidence on record. As per Order 12 Rule 6 of CPC, the party who is alleged to have made an admission is entitled to be granted an opportunity to explain the so called admission made in the affidavit at the stage of trial. Such allegations made by the parties against each other could not have been brushed aside in such a summary manner as it is done by the Family Court.”
Most remarkably, the Division Bench then hastens to add in para 21 candidly conceding that, “ We have perused the Application fled by the Respondent for passing decree on admission without admitting the allegations of cruelty made on part of the Appellant in the affidavit-in-reply, and also based on its own admission in the Application, praying for passing of decree of divorce on admission and submitting to the decree in terms of prayer clause (a) of the Petition. There is no admission on the part of the Appellant for decree of divorce. The decree of divorce on admission could have been passed if both parties would have agreed before the Family Court. The situation would have been different in such case.” As a corollary, the Division Bench then holds in para 22 that, “ We accordingly pass following order;
ORDER
(i) The impugned Judgment and decree of divorce dated 17th February, 2022 passed by the Principal Judge, Family Court, Mumbai is hereby set aside.
(ii) M.J. Petition No. A-3037 of 2017 to be restored to file and to be heard on its own merits expeditiously.”
Finally, the Division Bench then concludes by holding in para 23 that, “ Family Court Appeal is allowed in the above terms. In view of disposal of Family Court Appeal, Interim Application does not survive and accordingly stands disposed of. Parties to bear their respective costs.”
In conclusion, we thus see quite distinctly that the Bombay High Court has very rightly, robustly, remarkably and rationally conceded unmistakably that a Family Court cannot grant a divorce without a trial assuming marriage is dissolved in the parties minds and their hearts. This is more so because the parties have not led any evidence nor withdrawn their allegations against each other. Very rightly so!
