Rajinder Malik vs Kavita

S. Ravindra Bhat, J.—The present appeal is filed by the husband (hereafter referred to appellant) impugning an order dated 03.06.2004 passed by the Trial Court allowing the review petition of the wife under order 47 rule 1 of CPC (hereafter referred to as the respondent). The facts essential to decide this present appeal are:

The marriage between the parties was solemnized on 16.03.2002. There are no children born out of the wedlock. The parties, soon stopped living as husband and wife, and moved a petition u/s 13B (1) of the Hindu Marriage Act for a decree of divorce by mutual consent. The joint motion of the parties was made and after recording the statement of the parties, a decree of divorce was passed on 19.01.2004.

The Respondent filed an application for review of the order-dated 19.01.2004 on the grounds that the marriage between the parties was an arranged one and from the day one she was treated with cruelty, and harassed for dowry. The respondent, in her application, alleged that the Appellant had contacts with senior police officials in the city and frequently threatened her, that in case his demands were not met with, then, arms and weapons would be placed at her parental home, her parents and brothers would be falsely implicated under the POTA and sent to jail.

The respondent, in her review application averred that she signed the divorce papers under threat and the Appellant has played fraud on the court. The Respondent further alleged that the appellant did not want her parents to know about the divorce proceedings and he compelled her to execute a false affidavit in the first motion of divorce by mutual consent stating that their marriage was a Love marriage, against the wishes of parents and her parents are reluctant to help them in any manner. The court had issued notice to her parents because she had remained silent when asked if the Petition was filed out of her free will. But due to the wrong address given in the petition by the Appellant her parents never turned up; the matter was later on decreed. The respondent states that in October she conceived from the appellant and when she was 2-3 months pregnant he took her to Dr. (Mrs.) Savita Kohli, forced her to sign some papers and the pregnancy was terminated.

The Respondent further alleged that under threat she was compelled to depose falsely before the court and thus the Appellant succeeded in getting the divorce. The Respondent further alleges that she and the appellant had not lived separately for one year prior to filing the petition for divorce by mutual consent, an essential condition. The respondent during pendency of the review petition also filed an application u/s 340 Cr. P.C.

The Additional District Judge ("the trial Court") heard the review petition and allowed it by his order-dated 03.06.2004. His opinion was though no case of perjury was made, yet the facts before him established that the petitioner husband had falsely deposed before the court. Therefore, the decree of divorce by mutual consent was set aside.

Mr. Yogesh Jain, learned senior counsel submitted that the entire premise of the trial court''s order was on the basis of alleged admissions in the pleadings, by the petitioner husband. It was submitted that the respondent attended the court on several occasions; she could have presented the allegedly correct picture during any hearing, and submitted about coercion, alleged lack of knowledge and voluntariness regarding the ground of execution of the two applications, etc. It was submitted that the respondent had moved for pre-ponement/early hearing of the case, for the second motion. Even then, she did not make any complaint. It was submitted that the records before the trial court, and produced during these proceedings, established that the respondent far from being unlettered or ignorant, was in truth a fairly educated person, having studied and obtained a CBSE examination.

Counsel submitted that the allegations about the husband appellant playing a fraud on the wife, and obtaining a mutual consent divorce decree without her knowledge, was false. He submitted that indeed if the respondent had deposed correctly about the alleged abortion in October, 2003, nothing prevented her from stating the true and correct facts, when the second motion u/s 13-B(2) was filed, and the parties presented themselves before the trial court. The respondent wife could not claim to be ignorant of court proceedings; she knew what she was doing. All these, it was stated, entitled the court to assume that she was lying, for gain.

Learned counsel submitted that the trial court erred in premising its conclusion solely on pleadings, and holding that the appellant had not refuted the allegations about the wife''s pregnancy having been terminated. In fact, a fair reading of reply to the review application showed that the allegations were traversed, and denied. In these circumstances, the court ought not to have assumed fraud, upon itself. The trial court ought to have examined the rival contentions, by testing them through evidence, and could have proceeded in its absence, only if the admission was categorical and unambiguous. Instead, the trial court rendered findings of fraud, in a lightheaded manner. Counsel also submitted that the respondent has now secured employment in the Delhi Police.

Learned counsel for the respondent denied all allegations and has stated that the appeal is not maintainable as the order dated 19.01.2004 passed by the trial Court was obtained by the Appellant by playing fraud upon the court and when the court came to know about that it set aside the same by the order dated 03.06.2004. The Respondent further alleges that the appellant was aware that she was pregnant when they resided together and he took her to the certified doctor, signed on the official papers and got the abortion done.

Counsel for the respondent relied on United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, : Smt. Puspalata Rout Vs. Damodar Rout, to say that where it is held that fraud is practiced upon the court the matter can be set right in exercise of powers u/s 151 CPC.

The trial court in its findings recorded as follows:

However in the present case a fraud has been committed not against the applicant only as per the allegations but against the court itself. For instance, both the petitioners while making the statement in the court in petition u/s 13B (2) of Hindu Marriage Act on 19.01.2004 had stated that they were living separately from each other since May, 2002. In the application moved now in Para No. 15, the applicant has taken a clear stand that she conceived from the respondent in the end of October, 2003 and when pregnancy become apparent, the respondent abused and manhandled the applicant and took her to one Dr. (Mrs.) Savita Kohli at Janakpuri, New Delhi for the abortion where she was forced to sign certain papers and undergo abortion. In reply to the application, the respondent had taken the stand that the allegations are false and by alleging that the applicant conceived from the respondent in October 2003, the applicant is trying to cover her own misdeeds which was one of the reason for dispute between the parties because of which discord had broken out between the parties leading to the filing of the divorce petition. It is further stated that respondent had agreed to go for divorce by mutual consent on the suggestion of the applicant herself in order to avoid unnecessary controversies, long litigation and social stigma. The respondent further took the stand that there was no question of the respondent forcing the applicant for abortion. The respondent was put on notice of the certificate issued by Dr. (Mrs.). Savita Kholi of Janakpuri, New Delhi, Copy of which annexure ''A'' has also been filed on the record but the respondent had chosen not to comment as to whether he had taken the applicant to the doctor or not, abortion was carried out by the respondent. Otherwise I would have gone for calling evidence either in the form of affidavit or by summoning the doctor but since the respondent himself is not contesting the allegations and maintaining silence as regard the allegations when he is supposed to speak, I had come to the conclusion that in fact both applicant and the respondent were residing together when they had filed the petition u/s 13B (1) as well as u/s 13B (2) of Hindu Marriage Act for seeking divorce by mutual consent and it was a fraud played upon the court as one of the condition requisite for accepting the petition u/s 13B(1) of Hindu Marriage Act was not fulfilled and false statements were made by the petitioners in the court. Otherwise, if they were living separately and had applicant conceived from a person other than respondent, then it was not the problem of respondent. It has been held so by Hon''ble Orissa High Court in the case reported as Smt. Puspalata Rout Vs. Damodar Rout, which was also a case u/s 13B of Hindu Marriage Act and the court has come to the conclusion that after a fraud has been committed and the court has power under Order 47 Rule 1 CPC as well as u/s 151 CPC to review the order and set aside the decree for. Accordingly, I recall the order dated 19.01.2004 dissolving the marriage between the parties and set aside the judgment as well as the decree dated 19.01.2004.

As evident, the trial court in the review order states that the Appellant played fraud on the court and he filed a joint motion for divorce when the parties were living together, i.e. when the Respondent had undergone medical termination of pregnancy. Since, the appellant remained silent and he did not contest the allegations a conclusion was drawn that the parties were living together.

It a trite proposition that fraud unravels all actions. Therefore, indeed, if there is truth in the allegations made that fraud was practiced upon the respondent or on the court, the decree for mutual consent dated 19-1-2004 would have to be set aside. Significantly, no evidence was recorded and the order-dated 19.01.2004 was set-aside only on the inference that the appellant maintained silence regarding the abortion certificate, which led to an inference that parties were living together when the first motion was made.

The Supreme Court, in some decisions, (Ref Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass, , Maharashtra Power Development Corpn V. Dabhol Power Co 2005-(OII)-SCC-0207) held that fraud, in order to be established, has to be based on a higher standard or degree of evidence, than in other cases.

Section 58 of the Indian Evidence Act reads as under:

Facts admitted need not be proved.- No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

The first question is whether the trial court acted correctly in concluding that there was an admission by the appellant about the abortion/premature termination of pregnancy. The relevant paragraph, No. 15 in the review application was refuted by the appellant and the entire version of the abortion has been denied. The appellant stated that both the parties are literate and the Respondent after the second motion of mutual consent on 15.7.2003 made an application to the court stating that the intervening period for the 2nd motion may be waived in as much as she being young, was interested in getting remarried and the delay adversely prejudiced her chance of getting married. The Appellant further alleges that one Mr. Rakesh Kumar had filed an affidavit stating that he intended to marry the Respondent after the divorce proceeding. The Respondent had filed a similar affidavit and another affidavit stating that she has received back all her streedhan, items of dowry and there are no claims against each other.

The records of both the proceedings u/s 13B and in review were called for; I have seen them. The record shows that both the motions u/s 13-B were signed by the respondent; the second motion was in January, 2004. She had also signed an application for pre-ponement of the proceedings; she was present in court on both the occasions. The denial of the appellant about the relevant part of the application, particularly about the allegations of abortion, in my considered opinion, entitled, and cast an obligation on the trial court to record evidence. The very nature of allegations were such that a finding of fraud was to follow if the allegations were proved. Such a finding entails serious consequences. The Supreme Court, as noticed above, has laid down that the degree of proof of fraud is of the highest order. It was also held, in Balraj Taneja and Another Vs. Sunil Madan and Another, , after analysing the various provisions of the Code of Civil Procedure, such as Order 8 Rule 5, Order 12 Rule 6, and Section 58 of the Evidence Act, as follows:

As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court''s satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8.

Applying these tests to the instant case, it will be noticed that in a suit for specific performance it is mandatorily required by Section 16 of the Specific Relief Act to plead readiness and willingness of the plaintiff to perform his part of the contract. The court, before acting under Order 8 Rule 10 has to scrutinise the facts set out in the plaint to find out whether all the requirements, specially those indicated in Section 16 of the Specific Relief Act, have been complied with or not. Readiness and willingness of the plaintiff to perform his part of the contract is a condition precedent to the passing of a decree for specific performance in favour of the plaintiff.

The trial court had recorded a statement of the parties to the effect that the Respondent received a sum of Rs. 70,000/- from the Appellant and he has also paid Rs. 10,000/- for the premises taken on rent. This statement is not denied by her. In view of the above conspectus of facts, having regard to the seriousness of the charge of fraud, the nature of denial which cannot be termed as evasive, or as an admission, and the other evidence, on record, the trial court should have delved deeper than merely rendered findings on the basis of pleadings. Another significant feature is that the Court was not convinced about the change of perjury, which are based on the same facts which led it to conclude that a fraud had been played upon it by the appellant. In view of the above discussion, the judgment and order of the trial court in review petition, dated 3-6-2004, in HMA 535/2005 is set aside. The appeal is accordingly allowed. The learned additional and sessions judge shall consider the application for review, on its merits, after recording respective evidence of the parties, and issue an order in accordance with law.