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2013 Supreme(Del) 89
IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S.SISTANI, J.
MON MOHAN KOHLI - Petitioner
versus
NATASHA KOHLI - Respondent
CM(M) 684/2010 & CM.13618/2010
Decided On : 17.01.2013
Ms. Geeta Luthra, Sr. Advocate with Mr. Ankur Mahindroo, Advocate
Mr. Rajshekhar Rao, Ms. Anu Bagai, Mr. Bhuvan Mishra and Ms. Manini Brar, Advocates
Headnote:
NULLITY OF MARRIAGE - SUBSISTING MARRIAGE - ADMISSION - SPECIFIC AND UNAMBIGUOUS - FOREIGN JUDGMENT - CONCLUSIVENESS - SECTION 13 OF THE CODE OF CIVIL PROCEDURE - HINDU MARRIAGE ACT, 1955 - SECTIONS 5(1)(A), 11 AND 12(1)(C) - ORDER 12 RULE 6 OF THE CODE OF CIVIL PROCEDURE - APPLICATION FOR PASSING A DECREE OF ANNULMENT OF MARRIAGE - ADMISSIONS MADE BY THE RESPONDENT IN THE WRITTEN STATEMENT - EFFECT - FOREIGN JUDGMENT OBTAINED BY THE RESPONDENT - VALIDITY AND EFFECT - TRIAL COURT'S DISCRETION TO PASS A DECREE ON ADMISSION - SCOPE AND POWER OF THE HIGH COURT UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA - INTERFERENCE WITH THE TRIAL COURT'S ORDER - GROUNDS.
Fact of the Case:
Petitioner filed a petition for grant of divorce under Section 13 (1) (ia) of the Hindu Marriage Act on the ground of cruelty and another petition for grant of decree of nullity under Section 11 of the Hindu Marriage Act in the alternate under section 12(c) of the Hindu Marriage Act for annulment of marriage on the ground of fraud. According to the petitioner, marriage between the petitioner and the respondent is a nullity since the respondent had a subsisting marriage with one Mr. Kia Louis Boccagna, which was performed in the United States of America. Respondent admitted in her written statement that she had been married for a while to the said Mr. Kai Boccagna. The said marriage was nevertheless dissolved. Respondent thereafter filed a petition for nullity/ annulment under Rule 140 (e) of the Domestic Relations Law, State of New York, which was filed on 21.11.2007 on the ground of alleged non-consummation of marriage after a gap of 25 years. After the decree of annulment of marriage was obtained by the respondent, respondent sought to amend her written statement on 30.04.2009. Petitioner contended that the decree of annulment dated 28.04.2008 which was passed by the Supreme Court of the State of New York, Westchester County (County Court) in the State of New York, was a collusive decree between the respondent and Mr. Kia Louis Boccagna and thus would have no bearing to the marriage of the respondent with the petitioner and the decree is void in view of section 5(i) (a) of the Hindu Marriage Act.
Finding of the Court:
The 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. 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. 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. 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.
Issues: 1. Whether the admissions made by the respondent in her written statement are specific and unambiguous to allow a decree of annulment of marriage under Order 12 Rule 6 of the Code of Civil Procedure? 2. Whether the foreign judgment obtained by the respondent annulling her previous marriage is valid and conclusive in India? 3. Whether the trial court erred in rejecting the petitioner's application for passing a decree of annulment of marriage?
Ratio Decidendi: 1. 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. 2. 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. 3. 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.
Final Decision: The petition and the application are dismissed. The trial court is directed to dispose of the matter, expeditiously.
G.S.SISTANI, J (ORAL)
1. Present petition is directed against the order dated 10.03.2010 passed by the Additional District Judge, Delhi, whereby an application filed by the petitioner (husband) under Order 12 Rule 6 of the Code of Civil Procedure for passing a decree of annulment of marriage in view of admission made by the respondent (wife) in the written statement, was rejected.
2. Petitioner was married to the respondent on 14.11.1994 and a male child was born out of their wedlock. The petitioner has filed a petition for grant of divorce under Section 13 (1) (ia) of the Hindu Marriage Act on the ground of cruelty which petition is also pending. Meanwhile, petitioner has filed another petition for grant of decree of nullity under Section 11 of the Hindu Marriage Act in the alternate under section 12(c) of the Hindu Marriage Act for annulment of marriage on the ground of fraud.
3. According to the petitioner, marriage between the petitioner and the respondent is a nullity since the respondent had a subsisting marriage with one Mr. Kia Louis Boccagna, which was performed in the United States of America. It is submitted that this fact was duly admitted by the respondent in her written statement which was filed to the petition filed by the petitioner herein under Section 13 (i) (ia) of the Hindu Marriage Act, seeking divorce on the ground of cruelty. According to this petition, the petitioner had no knowledge that the marriage of Mr. Kia Louis Boccagna son of Mr. David Boccagna and the respondent was subsisting even at the time of filing of the divorce petition in the trial court. According to the petitioner, the fact regarding the actual marriage of the respondent with Mr. Kia Louis Boccagna came to the knowledge of the petitioner after he obtained the certified copy of the decree which was obtained by the respondent from the United States of America, which was received by the petitioner through a courier on 12.05.2007. According to the petitioner, the marriage between the respondent and Mr. Kia Louis Boccagna is a subsisting marriage which is borne out of the order of the Matrimonial Court at Florida, United States of America i.e. Circuit Court of the Fifteenth Judicial Circuit of Florida. In and For Palm Beach County, Juvenile and Family Division, Case No.CD 90-8251 FZ establishing that the respondent continued to be married to Mr. Kia Louis Boccagna.
4. Ms.Luthra, learned senior counsel for the petitioner contends that the said order dated 28.03.1991 shows that the marriage is subsisting and the petition filed by the Mr. Kia Louis Boccagna for divorce/ annulment was dismissed due to non service on the respondent. The petitioner thereafter filed a petition for nullity/ annulment under Section 11 and in the alternate Sections 12(1) (c) of the Hindu Marriage Act, which was filed on 17.07.2007. According to Ms.Luthra, the learned trial court arrived at a finding that the admission i.e. the respondent?s marriage with Mr. Kia Louis Boccagna on the date of marriage to the petitioner (husband) and on the date of filing to the petition for nullity has been adequately made out. The observations made by the trial court in 16 and 17 of the Order have been relied upon and are reproduced below:
“16. Keeping the above principles in mind and after thoughtful consideration of the above contentions, in light of the pleadings of the parties and the record placed, I am of the view that as far as the admission as to the Respondent’s marriage is concerned, there is enough and adequate admission of marriage between the Respondent and Mr. Boccagna. I also find force in the contentions of the Ld. Counsel for the petitioner that the respondent cannot claim that she did not have the details as to the fate of her relationship with Mr. Boccagna or that once she realized about the subsistence of marriage, she had discreetly made efforts for its nullity. As far as the admission as to the marriage with Mr. Boccagna is concerned, there is little d
