BOMBAY HIGH COURT
R.G. Ketkar, J.
Meenal Nigam —Petitioner
versus
Ravi Kalsi —Respondent
Writ Petition No.6066 of 2014
Decided on 13.3.2015

IMPORTANT POINTS
1. For the purpose of decree on admission, no decree can be passed in favour of a party on the basis of its own admissions.
2. A party cannot be allowed to take benefit of its own wrongs.

Headnote:(A) Civil Procedure Code 1908- Order 12, Rule 6- Decree on the basis of admission- A party seeking decree on the basis of admission, must rely upon the admission made by the opposite party- Decree cannot be passed in favour of the party on the basis of admission of such party itself- Decree on the basis of admission cannot be sought as a matter of right- It is pure discretion of the Court which should be exercised with known judicial cautions. (Paras 13, 14 and 15)

       (B) Civil Procedure Code 1908- Order 12, Rule 6- Hindu Marriage Act 1955- Section 13 (1) (ia) and Section 23 - Decree of divorce on the basis of admission - Divorce petition filed by wife on the ground of cruelty and desertion- Husband also filed counter claim of divorce on the ground of cruelty and desertion by wife- Wife admitting on the record that she herself withdrew from the society of her husband and deserted him for more than two years- On the basis of such self serving admission of wife, no divorce could be granted to her- Plea on the part of wife to grant divorce on the ground of admission not accepted. (Para 11 to 14, 17 & 18).

       (C) Evidence Act Section 58 read with Order 8, Rule 5 C.P.C.- Proof of admitted facts- According to Section 58 admitted facts need not be proved- Order 8, Rule 5 provides that allegation of fact in the plait have to be specifically denied and proviso to sub rule (1) says that the Courts may require any fact so admitted to be proved otherwise than by such admission. (Para 19 and 20)

       Facts of the case-

        Where wife field divorce petition on the ground of cruelty and for custody of minor son against her husband who filed written statement along with counter claim alleging that intention of the petitioner wife was to torture and harass him and that on the contrary it was he who suffered mental and physical agony and harassment at the instance of the petitioner. Details of the said facts were stated in the counter claim. However the petitioner filed application for granting divorce on the basis of admission under Order 12, Rule 6 CPC. She admitted in the application itself that she had withdrawn from the society of respondent and deserted him for a period of more than 2 years. The application was dismissed by the family Court on the ground that petitioner cannot fake undue advantage of her own wrong.

       Findings of the Court-

        A decree on admission is not a matter of right but rather a discretion of Court, which discretion must be exercised in accordance with known judicial canons. Section 23 (1) of the Act lays down that in any proceeding under the Act, whether defended or not, if the Court is satisfied that any of the grounds for granting relief exists and the petitioner (except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5) is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief then the Court shall decree such relief accordingly.

        Section 58 lays down that facts admitted need not be proved. Proviso thereto lays down that th courts may, in its discretion, require th facts admitted to be proved otherwise than by such admissions. Order 8, Rule 5, Civil procedure Code provides that allegation of fact in the plaint has to be specifically denied. Proviso to sub-rule (1)thereof lays down that the Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. It has been held that the admission of the petitioner in paragraph 3 of the application, Exhibit-22/A is a self-serving admission. Therefore, Family Court was right in holding that the petitioner was trying to take advantage of her own wrong which cannot be allowed. Therefore the order of Family Court upheld.

       Result: Petition dismissed.