Vijayshree Yeshwant Worlikar vs Maharukh Murad Oomrigar and Another

K.K. Baam, J.—This petition has been filed by the petitioner/applicant seeking an order and direction that false, defamatory and scandalous statements and allegations made by the 1st respondent in Petition No. 7 of 1996 dated June 10, 1996, in the affidavit of the 1st respondent No. 1 in rejoinder dated July 19, 1996, in the affidavit in reply of the 1st respondent dated July 19,1996 in Petition No. 8 of 1996 in the Written Statement of the 1st respondent dated July 19,1996 (in P.M. Suit No. 38 of 1995) and in the affidavit in reply to the Petition No. 10 of 1995 be ordered to be expunged from the said pleadings and in order to seek these directions the applicant herein has prayed that pending the hearing and final disposal of the petition, the Court be pleased to appoint a female Gynaecologist of repute to physically examine the petitioner/applicant and to place before this Hca''ble Court her certificate of her examination, in a cover to ascertain as to whether the petitioner/applicant has ever had any intercourse as alleged or at all.

The circumstance which, according to the petitioner/applicant has caused her to file this petition is that the 2nd respondent Dr. Murad D. Oomrigar filed a suit in this Court being Suit No. 38 of 1995 on November 21,1995 seeking a decree of divorce to be passed in favour of the 1st respondent-original plaintiff dissolving the marriage of the plaintiff to the defendant-respondent No. 1 herein; for custody of minor Vihan and for other consequential reliefs. As regards the cause of action in this petition, the 1st respondent has filed her written statement wherein by way of defence she has brought on record certain facts and in the Written Statement she has made certain allegations about the relationship between the 2nd respondent and the petitioner/applicant herein which has brought about disharmony in the marital life of the 1st and 2nd respondents. Apart from this suit, in Petition No. 7 of 1996 filed in the said Suit No. 38 of 1995 and which is pending in this Court, the 1st Respondent here in (being petitioner in Petition No. 7 of 1996), has prayed for custody of minor Vihan and for other reliefs pertaining to the conduct of Palm Beach Pre-primary School run and conducted by the petitioner/ respondent No. 1 herein. In the said Petition No. 7 of 1996 the present petitioner/ applicant is 2nd respondent. Apart from this petition, there is another petition which is filed and pending namely Petition No. 8 of 1996 filed by the 2nd respondent herein against the 1st respondent herein seeking a relief that minor Vihan be permitted to reside with thepetitioner/2nd respondent herein at Rajab Mahal, Church gate, Mumbai. In the reply to the said petition, the respondent therein (the 1st respondent herein) has alleged the relationship between the petitioner and 2nd respondent herein, which according to the 1st respondent is detrimental to the welfare of the minor Vihan.

It is contended on behalf of the petitioner herein that so far as these scandalous allegations are concerned, they are affecting her character, status and her chances of marriage and, therefore, these allegations should be struck down and/or expunged and for that an opportunity be given to prove her these allegations as being false and baseless and that she is willing to submit herself for medical examination to a Gynaecologist of repute and has submitted before the Court the names of :

On behalf of the petitioner reliance has been placed on Order 6 Rule 16 of the CPC which provides :

"The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-

(a) which may be unnecessary, scandalous, frivolous or vexatious or;

(b) which may tend a prejudice, embarrass, or delay the fair trial of the suit, or;

(c) which is otherwise an abuse of the process of the Court."

However, the question arises as to whether at this stage, the petitioner is entitled to seek the relief that scandalous allegations made against her in Written Statement in affidavit-in-reply should be struck down in the Record and Proceedings.

In support of her contention, the petitioner has relied upon a decision in the case of Bharat Raj v. University of Allahabad reported in 1987 Allahabad L.J. 235, wherein it has been observed thus :

"The law does not prescribe the standard of formulae pleadings as indeed it cannot because it is difficult to make a strait-jacket stipulation that the pleading would be made in a particular manner. But the law does prescribe that ought not be said, and indeed if said, then a person making the averment must take the responsibility for it. It is here that the gentleman at the Bar are cast with the obligation that pleadings before the Court must be clean. The Bar is not privileged to make reckless charges, even on the instructions of the client. The independence of the Bar needs to be preserved and protected as it must have every rightful opportunity for the proper discharge of its duties and obligations".

In the aforesaid ruling it has been further observed :

"Merely because a client suggests to Counsel that certain allegations, which are otherwise grave and scandalous in nature, must be made does not mean that Counsel should under sufferance acquiesce to the temptation of the suggestion of the client. It is here that Counsel are upon good faith and honourable conduct to exercise independent judgment and set only such pleadings on record which appear to them to be correct with a sense of personal responsibility. It is the duty of a Lawyer to ensure beyond a reasonable doubt that the charges which his client is making, is true. This self-imposed standard has to be set by the Bar so as to ensure that the code of conduct, even when making an allegation, is that of a gentleman."

On behalf of the petitioner/applicant reliance has also been placed on the judgment in me case of Dattugir Vs. State of Maharashtra and Others, , more particularly on head Note (C) which reads:

"Legal Ethics : Relationship of Advocate and client and duty towards the Court-Election to Educational Society Trust challenged-Aspersion of disparaging character cast against Returning Officer unjustifiably- Held, advocate is representative not mouth pieces of client-Has obligation to ensure that allegations are true."

In reply to the argument advanced by Mrs. Nanavati, the learned Advocate for the petitioner/applicant and the authorities cited on her behalf, Mr. Kathawala, on behalf of the 1st Respondent has urged that the allegations contained in various pleadings before the Court namely Written Statement, affidavit-in-reply, cannot be struck down at this stage and that final relief cannot be granted at this stage in favour of the petitioner because assuming for the sake of argument, the petitioner is subjected to medical examination, the certificate by itself would not entitle the petitioner to any relief but evidence would be required to be led to ascertain the truth or otherwise of the contents of the certificate.

It has been, therefore, urged on behalf of the 1st respondent that if final relief cannot be granted in terms of prayer (a), ad-interim relief in terms of prayer (b) cannot be granted. It has also been contended on behalf of the 1st respondent that even though the material as recorded in the Written Statement and other various affidavits is scandalous, it would not be possible to grant relief in terms of prayer (a) more particularly in the light of the nature of the litigation pending before the Court for the contents of the Written Statement are the defences of the 1st respondents to the suit filed by the 2nd respondent seeking a divorce on the ground of cruelty pleaded against the 1st respondent. In reply thereto, the 2nd respondent has set out the defence in which she has pleaded that the 1st respondent is having affair with the petitioner herein and this defence has been set out as being the material facts placed before the Court to counter the allegation of cruelty levelled against the 1st respondent and thereby demolish the case of the 2nd respondent as regards the grant of divorce. According to the 1st Respondent, the allegations made are not scandalous but are relevant for determination of the right of the 2nd respondent to obtain a divorce and the matter is an issue which will be pending before Parsi Matrimonial Court and will be determined at the time of hearing of the suit where the parties will be required to lead evidence and in the event the 1st respondent is not able to support her defences, in that case the said issue will be decided before the Parsi Matrimonial Court. Therefore, it is the case of the 1st respondent bearing in mind the nature of the suit which has been filed and the contents of the Written Statement, if these contentions and allegations are struck off at this stage, the same will go to the root of the matter so far as Parsi Matrimonial Court Proceedings are concerned and will demolish the case of the defendants as the same would tantamount to striking out of defence of the 1st respondent and in event of trial proceeds, the 1st respondent would be left without any defence.

In reply to the arguments and the authorities cited on behalf of the petitioner i.e. 1987 All L.J. 235 and Dattugir Vs. State of Maharashtra and Others, , Mr. Kathawala, on behalf of the respondent No. 1 has stated that no doubt the Counsel and the Bar has the responsibility to set on record only such pleadings as appear them to be correct with a sense of personal responsibility but in a matrimonial litigation where the client namely the 1st respondent has given certain instructions to the Counsel to plead her defence to the suit filed by 2nd respondent, it cannot be contended that the Counsel or the member of the Bar has acted in an irresponsible manner because the Counsel has a duty towards his client to record the instructions given to him by way of defence which, if not recorded, would have been derogatory to the defences in the suit. In support of his contention, Mr. Kathawala on behalf of the 1st respondent placed reliance on a judgment in Iqbal and Others Vs. Hakimuddin and Others, , wherein it has been observed to the effect:

"While exercising jurisdiction under Order 6, Rule 16 of Civil Procedure Code, Court should consider whether allegations complained of are necessary for establishing the defence or not. In deciding the question, whether the allegations, which are objected to, is relevant on any of the issues, the correct test, which is to be applied is whether the controversial allegations should be spoken to by the defendants in their evidence for the purposes of establishing his defence, which if established, would non-suit the plaintiff, and that with reference to the matter, it would be admissible in evidence with reference to the relief that is prayed. In order to determine the relevancy one must see what is the nature of the suit, and if any relief is sought in respect of me allegations made in the defence. The charges of the most offensive character may be introduced into a written statement, if they are relevant to the issue or the matter in question between the parties, but it is not allowable to introduce offensive statements unless they are relevant to the relief sought."

On behalf of the respondent No. 1, reliance has also been placed on the decision in P.D. Shamdasani v. Central Bank of India, reported in AIR 1944 31 Bom 197, wherein it has been observed to the effect:

"In an application to expunge certain portion of a plaint the question before the Court is, whether the words complained of as set out in the summons amount to an allegation necessary for the formulation of the plaintiff''s case, either in the way of establishing a cause of action or relevant for the purpose of the decision of any of the issues. To determine whether the statement, to which objection is taken, supports the cause of action or is relevant to any of the issues, the test would be whether the allegation or the statement could form part of the evidence-in-chief which the plaintiff would be bound to lead for the purpose of claiming the relief sought for."

Reliance has also been placed on behalf of the 1st respondent on the judgment in Gobinda Mohun Das v. Kunja Behari Das, reported in 1909 Ind Cas 380 wherein it has been observed thus :

"Allegations of dishonest conduct should never be made in pleadings if no relief is sought on that ground."

Reliance has also been placed upon the observations on the decision in Cracknail v. Janson, Chancery Division, C.A. 1879, Vol. XL wherein it has been held :

"But nevertheless it was an issue raised by the pleadings, and the greater portion of the paragraph in question, being relevant to the issue, cannot be considered scandalous."

In view of the above arguments and rulings cited/the question that is placed for consideration is that in a case of this nature can the scandalous allegations be struck off at this stage more particularly when the allegations have been made by the wife namely the 1st respondent in a proceedings filed by the husband-the 2nd respondent alleging cruelty and seeking divorce on the ground that the 1 st respondent has committed acts of cruelty to the 2nd respondent. By way of defences in the Written Statement the 1st respondent has made allegations which allegations, if struck off at this stage, would tantamount to demolishing the defence of the 1st respondent. The scandalous allegations have been made for establishing defences which, if establish, would non-suit the plaintiff. So far as these allegations are concerned, the parties would be required to lead evidence at the stage of trial of the suit at which stage it is always open to the petitioner herein to lead necessary evidence if required by getting herself examined.

It was also urged by Mrs. Nanavati on behalf of the petitioner/applicant that so far as the custody of minor Vihan is concerned both, respondents Nos. 1 and 2 have filed Custody Petition and the same can be decided only after the remarks are expunged. I do not find any substance in the argument as the issue of custody depends upon the interest and welfare of the child and so far as these allegations are concerned, the same can be decided independent of the allegations contained in the written statement and affidavit.

After the matter was argued and placed for orders today, Mrs. Nanavati, on behalf of the petitioner/applicant, wanted to tender further affidavit in support of the application which was not allowed as the arguments were concluded and the case was adjourned for orders and on earlier occasion Mrs. Nanavati had sought leave of the Court only to submit a judgment of Bombay High Court which was accordingly submitted. Hence, leave to tender further affidavit refused. Affidavit not taken on record.

Therefore, bearing in mind the nature of the suit filed by the 2nd respondent against the 1st respondent, the contents of the written statement and in the light of the observations made in Iqbal and Others Vs. Hakimuddin and Others, to the effect that the charges of the most offensive character may be introduced into a written statement, if they are relevant to the issue or the matter in question between the parties, but it is not allowable to introduce offensive statements unless they are relevant to the relief sought. The offensive statement, if any, contained in the Written Statement which is a defence of the Defendant, if struck off, would demolish the very defence of the defendant and not give an opportunity to the 1st respondent to meet the allegations of cruelty as contended by the 2nd respondent. So far, therefore, as this petition is concerned, I accept the contention of the 1st respondent that prayer (a) cannot be granted at this stage and if that is so, the petitioner would also not be entitled to the ad-interim relief of this stage.

In the light of foregoing discussion and reasons, so far as this petition is concerned, I am of the opinion that no interim relief can be granted at this stage to the petitioner/applicant. Hence, interim relief refused.