Delhi High Court
Jyoti Sharma @ Ruby vs Pramod Kumar on 10 December, 2014
$~R-87 (Part-B)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: December 10, 2014
+ MAT APP. 26/2013 & C.M.APPL.19738/2013
JYOTI SHARMA @ RUBY .....Appellant
Through: Mr. Samrat Nigam and Mr. Rohit
Singh, Advocates
versus
PRAMOD KUMAR ..... Respondent
Through: Pranay Trivedi, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Vide impugned judgment of 2nd September, 2013, respondent-
husband's petition for divorce is allowed by trial court while invoking the
provisions of Order 12, Rule 6 of CPC.
Suffice it would be to note that the parties were married on 27 th
November, 2009 and out of the said wedlock, there was no issue.
Frequent visits of appellant-wife to her parental house gave rise to the
suspicion in the mind of respondent-husband. According to respondent-
husband, appellant-wife had never allowed respondent-husband to touch
her mobile phone. As per respondent-husband, in the evening of 1st
March, 2010, appellant-wife had left the matrimonial house without
permission and a complaint was lodged with the local police. On enquiry,
respondent-husband was shocked to learn that criminal cases of cheating,
MAT APP. 26/2013 Page 1
etc. were pending against appellant-wife in Alwar courts and appellant-
wife was also involved in unauthorized withdrawal of cash from ATM of
State Bank of Bikaner and Jaipur and an FIR was registered in which
appellant-wife had obtained anticipatory bail few days before the
marriage and the aforesaid background of appellant-wife was purportedly
concealed from respondent-husband.
On the ground of intentional concealment of aforesaid material
facts and her criminal character, application under Order 12, Rule 6 of
CPC was filed by respondent-husband, which stands allowed vide
impugned judgment on the ground that appellant-wife has not denied the
allegations of concealment of her criminal background.
On an application under Order 12 Rule 6 of CPC by respondent-
husband, trial court vide impugned judgment has granted divorce while
holding as under:
"It was urged before the court by the ld. Counsel for
petitioner, that no reasonable minded person would be
normally entering into a marriage alliance knowing that the
would be spouse was facing such kind of criminal cases as
immoral turpitude and cheating relating to ATM; and
secondly, petitioner/husband would certainly not have
entered the marriage, had he been disclosed this information
prior to the marriage or even at the time of marriage. Since
even respondent has not bothered to deny this fact that she
has not disclosed about the pendency of all these criminal
cases, it is a clear cut case of fraud made out and the
consent of the petitioner to enter into marriage was obtained
by fraud."
At the hearing, impugned order was assailed by learned counsel for
MAT APP. 26/2013 Page 2
appellant by contending that there is clear-cut denial of the allegations of
concealment and there is no clear admission on the part of appellant-wife
regarding concealment of her criminal background.
It was submitted by appellant's counsel that the two criminal cases
pending against appellant-wife have been compromised and the
impugned order erroneously grants divorce on the ground of concealment
whereas there is no such concealment. To substantiate the aforesaid stand,
learned counsel for appellant drew the attention of this Court to
paragraphs No.17 to 21 of the divorce petition as well as to corresponding
paragraphs of appellant's written statement and also to paragraphs No.5
to 6 of the preliminary objections.
On the contrary, learned counsel for respondent supports the
impugned order and submits that there is no denial of material averments
and thus, trial court has rightly invoked the provisions of Order 12, Rule
6 of CPC to grant divorce on the ground of concealment.
As to when the judgment on admission can be passed, is no longer
res integra. The Apex Court in Himani Alloys Ltd. v. Tata Steel Ltd,
(2011) 15 SCC 273 has reiterated the parameters governing exercise of
power under Order 12, Rule 6 of CPC in these words: -
"It is true that a judgment can be given on an "admission"
contained in the minutes of a meeting. But the admission
should be categorical. It should be a conscious and
deliberate act of the party making it, showing an intention to
be bound by it. Order 12 Rule 6 being an enabling
provision, it is neither mandatory nor peremptory but
discretionary. The court, on examination of the facts and
circumstances, has to exercise its judicial discretion,
keeping in mind that a judgment on admission is a judgment
MAT APP. 26/2013 Page 3
without trial which permanently denies any remedy to the
defendant, by way of an appeal on merits. Therefore unless
the admission is clear, unambiguous and unconditional, the
discretion of the Court should not be exercised to deny the
valuable right of a defendant to contest the claim. In short
the discretion should be used only when there is a clear
"admission" which can be acted upon."
Applying the dictum of the Apex Court in Himani Alloys Ltd.
(supra) to the facts of the instant case and on a bare perusal of paragraphs
No.5 to 6 of the preliminary objections as well as paragraphs No.17 to 21
of the written statement filed by appellant-wife, I find that there is
specific denial of appellant-wife concealing her criminal background. No
doubt, in the preliminary objections, appellant-wife has questioned the
source of information regarding the criminal cases pending against her,
but this by itself will not dilute the specific denial of concealment of
criminal background by appellant-wife.
Infact, it has escaped the notice of the trial court that in paragraphs
No.22 to 23 of the written statement, appellant-wife has categorically
denied the averments of concealment made by respondent-husband. What
is stated by appellant in paragraphs No.22 to 23 of the written statement
is as under: -
"That paras 22 & 23 of the petition are wrong and
denied. Nothing has been concealed either by respondent or
her parents rather it is the petitioner and his family
members who made a wrong and false representations with
regard to the education qualification of the petitioner and
their status of movable property. It is the petitioner and his
parents who got married the petitioner by adopting deceitful
MAT APP. 26/2013 Page 4
means. Rest of the contents are wrong and denied. The
allegations of concealment is absolutely false and nothing
was concealed as alleged and it was told that there is a
dispute with the landlord of the parents of the respondent
and for this reason in order to force and pressurize the
parents of respondent these false cases got registered in
collusion with police while father of the respondent is a
Govt. Employee and aged about 57 years has no bad
antecedent and still serving as Govt. Servant."
Since the impugned order does not take notice of the aforesaid
quoted paragraphs of the written statement wherein there is clear-cut
denial of appellant concealing her criminal background, therefore, the
impugned order is rendered unsustainable and is accordingly set aside and
respondent's petition for divorce is restored for trial in accordance with
the law. The parties to appear before the trial court on 22 nd December,
2014 for further proceedings.
With aforesaid direction, the appeal and the application are
accordingly disposed of.
(SUNIL GAUR)
JUDGE
DECEMBER 10, 2014
s
MAT APP. 26/2013 Page 5
