Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 684/2010 & CM.13618/2010
% Judgment dated 17.01.2013
MON MOHAN KOHLI ..... Petitioner
Through: Ms.Geeta Luthra, Sr. Advocate with
Mr.Ankur Mahindroo, Advocate
versus
NATASHA KOHLI ..... Respondent
Through: Mr.Rajshekhar Rao, Ms.Anu Bagai,
Mr.Bhuvan Mishra and Ms.Manini Brar,
Advocates
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
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.
CM(M) 684/2010 Page 1 of 29
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
CM(M) 684/2010 Page 2 of 29
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 doubt
that the written statement, itself is redolent of subsistence of
marriage with Mr.Boccagna, and the subsequent attempts of
the respondent for its annulment under Rule 140 (e) of the
Domestic Relations Law, State of New York, goes on show
that the respondent had accepted the subsistence of marriage
with Mr.Boccagna.
17. Coming now to the contention that whether the
admission is specific and unambiguous. I am of the opinion
that the requirement of law to the effect that an admission
has to be specific, clear, unambiguous and unequivocal, does
not depend upon the choice of the words in the pleadings or
as to how are the admissions couched in the phrases, but
would largely depend upon the subsistence of the pleadings.
Admissions may be presented in a circuitous manner, where
a party, though admitting the fact, does not wish it to be
taken against him, outrightly. The Court, nevertheless, can
look into the substance, in order to find out as to whether any
other interpretation is possible or whether the explanation,
provided by the party against whom such admission is being
CM(M) 684/2010 Page 3 of 29
used, takes the case of the party to such a position, where the
Court is rendered of the view that it is not safe to conclude
upon the admission, and regardless the fact that admission
itself amount to evidence, that the very question demands
further corroboration and a higher quotient of evidence. A
reading of the written statement leaves this court in no doubt
as to the fact that as far as the marriage of the respondent
with Mr.Boccagna is concerned, the same is clearly admitted
by Respondent.”
5. Ms.Luthra, also contends that the admission made by the respondent in
her written statement is specific and unambiguous and thus satisfies the
ingredients of Order 12 Rule 6 CPC, according to which the admission
has to be specific clear, unambiguous and unequivocal. It is submitted
that even indirect admissions and admissions made in documents and not
specifically in pleadings are to be considered as admissions while
disposing of an application under Order 12 Rule 6 of the CPC. It is
contended that in view of the admissions made by the respondent there is
no room for doubt that the respondent was married to one Mr.Kia Louis
Boccagna, at the time of marriage with the petitioner. It is thus contended
that since the admission is binding on the respondent, the petitioner is
entitled to a decree of nullity. The relevant portions of the written
statement filed by the respondent (wife) reads as under:
“As regards her marriage with Mr.Kia Louis Boccagna, it is correct
that she had been married for a while to the said Mr.Kai Boccagna.
The said marriage was nevertheless dissolved. As the marriage
with Mr.Kai Boccagna is an episode in the respondent‟s life that is
almost 25 years in the past, the exact dates are no longer in the
memory of the respondent.”
6. Ms.Luthra, learned senior counsel for the petitioner also submits that the
respondent has admitted that she was never a party to any dissolution of
CM(M) 684/2010 Page 4 of 29
marriage, although she had been given to understand by Mr.Kia Louis
Boccagna and Mr.David Boccagna that her marriage with Mr.Kia Louis
Boccagna has been dissolved. It is submitted that such a plea is
preposterous as no unilateral dissolution of marriage is known in civil
law. She further contends that under the principles of natural justice and
in any system of civil jurisprudence, no final order can be obtained by any
party against another without giving notice to the said party. It is
submitted that there is no explanation as to how the respondent came to
such an understanding that her marriage with Mr.Kia Louis Boccagna
stood dissolved. It is also contended that simply because respondent‟s
husband Mr.Kia Louis Boccagna had entered into a bigamous and
adulterous relationship with Ms.Caryn D Fillipo, as alleged by the
respondent, can be of no benefit to the respondent to categorically
establish dissolution of her earlier marriage and further the assurances
made by her are patently false and she has committed perjury with
impunity, knowing fully well that the marriage with Mr.Kia Louis
Boccagna was subsisting.
7. It is next contended that after filing of the written statement the
respondent indulged in forum hunting and approached the Supreme Court
of the State of New York, Westchester County (County Court) in the State
of New York, where according to the petitioner, the parties had never
resided, by filing a petition for annulment of her marriage with Mr.Kia
Louis Boccagna under Section 140 (e) of the Domestic Relation Law
(DRL) on the ground of non-consummation of marriage. It is also
submitted by Ms.Luthra that the said petition was fraudulent and collusive
in nature. She further contends that the petition for annulment of her
marriage with Mr.Kia Louis Boccagna was filed on 21.11.2007 on the
ground of alleged non-consummation of marriage after a gap of 25 years
CM(M) 684/2010 Page 5 of 29
is meaningless particularly when no reply was filed by Mr.Kia Louis
Boccagna in the County Court. After the decree of annulment of marriage
was obtained by the respondent, respondent sought to amend her written
statement on 30.04.2009. It is submitted that although the stand taken by
the respondent in her written statement filed at the first instance was that
most likely her marriage has been dissolved with Mr.Kia Louis Boccagna
as per the assurances given to her by David Boccagna, father of her
husband (Mr.Kia Louis Boccagna), the respondent sought to rely upon a
decree of annulment passed under Section 140 (e) of the Domestic
Relations Law, which resulted in an annulment ab initio of marriage with
Mr.Kia Louis Boccagna and the said annulment operated as nullifying her
marriage and had made the effect of making her bigamous marriage with
the petitioner as a valid marriage.
8. According to the petitioner a void marriage in terms of Section 5(1) (a) of
the Hindu Marriage Act, cannot be validated by any subsequent act or
event. It is contended that the learned trial court had erred in holding that
evidence would be required to decide the said issue, although this was a
pure question of law. It is contended that the trial court has grossly erred
in not coming into a finding that the said foreign judgment has no effect
and no conclusiveness in view of section 13 of the Code of Civil
Procedure. Reliance is placed on Section 13 of the CPC, which is also
reproduced below:
“ 13.When foreign judgment not conclusive.-
A foreign judgment shall be conclusive as to any matter thereby
directly adjudicated upon between the same parties or between
parties under whom they or any of them claim litigating under the
same title except-
(a) where it has not been pronounced by a Court of
CM(M) 684/2010 Page 6 of 29
competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be
founded on an incorrect view of international law or a
refusal to recognise the law of [India] in cases in which
such law is applicable;
(d) where the proceedings in which the judgment was
obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law
in force in [India].
9. Ms.Luthra, counsel for the petitioner submits that the requirement and
mandate of Section 13 would show that there has to be direct adjudication
between the same parties and thus there is no conclusiveness of a foreign
judgment neither it is existing in the present case. It is submitted that the
foreign judgment is not binding on the petitioner as there is no
conclusiveness between the petitioner and the respondent.
10. It is contended that the only issue which was to be decided / adjudicated
by the trial Court was the effect of the declaration that the marriage
between the respondent and Mr.Kia Louis Boccagna had been annulled ab
initio and whether the annulment could have any effect on the third party/
stranger. It is also the contention of counsel for the petitioner that no
decree of foreign court is binding on the Indian Courts if it was not inter
se the parties. By an application for amendment, the subsequent events
and facts were brought on record when the amendment was allowed and
the amended written statement was taken on record.
11. Another submission made by Ms.Luthra, counsel for the petitioner is 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
CM(M) 684/2010 Page 7 of 29
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. Section 5 (i) of the
Hindu Marriage Act, reads as under:
“ 5. Conditions for a Hindu marriage. - A marriage may be
solemnized between any two Hindus, if the following
conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the
marriage ”
12. Relying on Section 5, Ms.Luthra, submits that the marriage between the
petitioner and the respondent is nullified as the respondent had a living
spouse at the time of marriage with the petitioner and the respondent has
played a fraud upon the court and is guilty of bigamy, perjury and
contempt of court. It is contended that the respondent in reply to the
application under Order 12 Rule 6 CPC, in the written statement and in
the application seeking amendment of the written statement clearly
establishes that there is clear and categorical admission made by the
respondent with regard to the subsistence of her marriage with Mr.Kia
Louis Boccagna, at the time of her marriage with the petitioner. In
addition to the grounds raised by her that the decree dated 28.04.2008 is
not binding or unenforceable in India under Section 13 of the Code of
Civil Procedure.
13. Ms.Luthra, contends that the said decree was collusive in nature, barred
by law of limitation and even otherwise a decree which has been declared
as void ab initio could not have any binding effect on the third party, who
would be affected. Ms.Luthra has placed reliance on Begins Vs. Begins
1958 555 for the said proposition.
14. Reliance is also placed on Smt. Padi & Ors. Vs. Union of India AIR
CM(M) 684/2010 Page 8 of 29
1963 Himachal Pradesh 16 (V 50 C6) and more particularly paragraph 3,
which reads as under:
“3. It has not been disputed that the petitioner was married to Smt.
Mathi about 20 years back or that she was alive at the time when he
married Smt. Padi or that the last mentioned marriage took place
after the coming into force of the Hindu Marriage Act 1955.
Section 5 of the aforesaid Act inter alia provides that a marriage
may be solemnized between two Hindus if neither party has a
spouse living at the time of the marriage. Section 11 thereof lays
down that any marriage solemnized after the coming into force of
the Act shall be null and void and Section 17 emphasizes that any
marriage between two Hindus solemnized after the commencement
of this Act is void if at the date of such marriage either party has a
husband or wife living and applies the provisions of Sections 494
and 495 of the Indian Penal Code. The conjoint effect of the
aforesaid sections is that if a marriage is solemnized after the
commencement of the Hindu Marriage Act between persons either
of whom has a spouse living at the time of the marriage the
marriage is void and the provisions of Sections 494 and 495 are
attracted to marriages between Hindus also. In the instant case it
has already been noticed that at the time when the petitioner
married Smt. Padi his wife Smt. Mathi was alive and there is thus
no escape from the conclusion that the marriage between the
petitioner and Smt. Padi was void. A thing which is void has no
existence in the eye of law. Since in the eye of law the relationship
of husband and wife did not exist between the petitioner and Smt.
Padi her subsequent marriage with another person will not attract
Section 494, I.P.C.”
15. Ms.Luthra, has also strongly urged before this court that the decree of
nullity which has been obtained by respondent from a foreign court is not
binding on the petitioner. In support of her contention, learned senior
counsel for the petitioner has relied on various judgments, which have
been discussed in detail by the trial Court in the order dated 10.03.2010.
16. This petition is opposed by the respondent on the ground that the
application filed by the petitioner under Order 12 Rule 6 CPC has been
CM(M) 684/2010 Page 9 of 29
dismissed by way of a reasoned order, which requires no interference in
proceedings under Article 227 of the Constitution of India. It is further
submitted that the petitioner is in effect seeking review/ re-appreciation of
evidence/ material before the trial court, which is not contemplated under
Articles 226/ 227 of the Constitution of India, which only confers
supervisory jurisdiction on the High Courts to examine whether an
inferior court has proceeded within its parameters or not.
17. Mr.Rao, counsel for the respondent further submits that while exercising
supervisory jurisdiction under Article 227 of the Constitution of India, the
High Court does not act as an Appellate Court and cannot re-weigh or
review the evidence on the basis of which the Court below has based its
decision. Elaborating his argument further, Mr.Rao, counsel for the
respondent submits that it has been repeatedly held that the jurisdiction
under Article 227 of the Constitution of India cannot be used even to
correct errors of law in the decision under challenge.
18. Counsel for respondent next contends that the impugned judgment has
been passed by the trial court in an application filed by the petitioner
under Order 12 Rule 6 of the CPC, and such a relief cannot be claimed as
a matter of right, but only as a matter of discretion and this discretion
cannot be interfered with unless there is gross abuse of the process and the
trial court has reached a conclusion which no reasonable man could in the
circumstances of the case. It is also the contention of counsel for the
respondent that to entitle a party for a decree on admission, the admission
has to be unequivocal, unambiguous, specific and positive. The pleadings
cannot be looked into piecemeal or dissected, but are to be considered as a
whole. The written statement in the present case raises triable issues,
which go to the root of the matter.
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19. Mr.Rao, submits that on 17 July, 2007 the petitioner had filed a petition
CM(M) 684/2010 Page 10 of 29
under Section 11 of the Hindu Marriage Act, 1955 for a Decree of Nullity
and in the alternative under Section 12(1)(C) for the Annulment of
marriage between the petitioner and the Respondent on the ground that
the respondent marriage with a person named Mr.Kai Boccagna was
subsisting at the time of the marriage between the petitioner and the
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respondent in the year 1994. The respondent, on 24 October 2007, filed
her Written Statement to the petition stating that although the respondent
did get married to Mr.Kai Boccagna but the same was dissolved and in
fact, Mr.Kai Boccagna had subsequently married a lady named Ms.Caryn
de Philipo. However, in order to present the complete state of facts before
the Hon‟ble Court, the Respondent also categorically stated in the Written
Statement that the Respondent was in the process of ascertaining detailed
facts regarding the marriage between the Respondent with Mr.Kai
Boccagna as well as the date of its dissolution and as soon as the same
were available with her, she would bring the same before the Hon‟ble
Court by way of an amendment to the Written Statement. Thereafter,
having come to know about the date of her marriage with Mr.Kai
Boccagna and the fact that, contrary to what the respondent had been
given to understand, the marriage between the Respondent and Mr.Kai
Boccagna had still not been dissolved, the Respondent immediately
moved the U.S. Court which after due consideration of the material on
record before it, annulled the marriage of the Respondent with Mr.Kai
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Boccagna ab initio vide its Order dated 28 April 2008.
20. It is also submitted by Mr.Rao, counsel for the respondent that in order to
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bring this subsequent event of the U.S. Decree dated 28 April 2008 on
the record of the learned trial court, the respondent moved an application
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under Order 6 Rule 17, Code of Civil Procedure, 1908 on 5 July 2008. It
is pertinent to mention that this Application has been allowed by the
CM(M) 684/2010 Page 11 of 29
learned trial court and remains unchallenged by the Petitioner.
21. After the amendment was allowed, the petitioner made an application
under Order 12 Rule 6 CPC. It is strenuously urged before this court that
when the first written statement was filed, the respondent had reserved her
right to file an amendment to the written statement as and when she would
come in possession of better particulars. The factum of annulment of
marriage of respondent with Mr.Kia Louis Boccagna ab initio raises a
triable issue for which evidence is required to be led and thus would not
tantamount to admission within the meaning of Order 12 Rule 6 of the
CPC.
22. I have heard counsel for the parties and carefully considered their rival
submissions. Since both the parties have relied upon paragraph 6 of the
written statement, it would be useful to reproduce the same:
“6. Para 6 of the Petition is vague, wrong and hence
denied. It is denied that before filing of the Petition on
31/1/07, under Section 13(1) (i-a) of the Hindu Marriage Act,
the Petitioner started making inquiries about the antecedents
of the respondent, as alleged. The allegation made in the Para
under reply are vague and baseless. The petitioner is an
extremely mischievous person who is also a habitual liar. It
is stated that at the time when the parties entered into the
marriage, the Respondent had completely, fully and
truthfully made a complete disclosure of all her past
relationships to the petitioner. The petitioner was always
aware that the respondent had a relationship with Mr.Prakash
Mehta, whom she never married. The petitioner was also
aware that after the relationship ended, the respondent had
made absolutely no financial gains from that relationship. As
regards the allegation of the petitioner of her friendship with
Mr.David Boccagana, the same has been mischievously
stated herein as the petitioner was always aware, as disclosed
to him by the Respondent that Mr.David Boccagana was a
business partner of the Respondent when the Respondent as a
young lady had traveled to USA to start a business. Mr.David
CM(M) 684/2010 Page 12 of 29
Boccagana and the Respondent had entered into a partnership
in terms of which the Respondent had opened a boutique in
florida in the name and style of “Natasha”. As regards her
marriage with Mr.Kai Boccagana, it is correct that she had
been married for a while to the said Mr.Kai Boccagana. The
said marriage was nevertheless dissolved. As the marriage
with Mr.Kai Boccagana is an episode in the respondent‟s life
that is almost 25 years in the past, the exact dates are no
longer in the memory of the Respondent. Nevertheless, it is
stated that the petitioner herein has pleaded these facts also
before the Hon‟ble High Court of Delhi where there is
litigation pending between the parties. Even before the High
Court of Delhi, the Respondent herein in her reply has prima
facie demonstrated that despite much passage of time and
despite the fact that the Respondent is in the process of
ascertaining all the detailed facts, it is prima facie evident
that the marriage of the Respondent with the petitioner is a
valid and subsisting marriage. It is stated that the Respondent
is in the process of ascertaining the detailed dates and facts
regarding the date of marriage with Mr.Kai Boccagana and
the date of dissolution of the marriage. For this process, it is
ascertained by the Respondent that in the United State of
America, after the September 11 attack in the Twin Trade
Towers in New York, the confidential information takes time
to be unearthed, as such time is required for the same. As and
when, the Respondent is in possession of better particulars,
the Respondent‟s reserves her right to amend the present
Written Statement to bring such subsequently discovered
facts on record. In this respect, it is stated that the
Respondent traveled to USA on an H-2 Visa, which was
issued on or about 02.11.1982 and which was valid up to
15.08.1983. At the time of her marriage with Mr.Kai
Boccagana, the Respondent was unaware that Mr.Kai
Boccagana had been married earlier to one Mrs.Michle
Boccagana. The Respondent continued her business in the
USA till 1985 after which she left USA, leaving behind all
that she had created. Once more she did not gain anything
monetarily out of the business or relationship in Flordia. The
Respondent had always been given to understand by
Mr.David Boccagana and Mr.Kai Boccagana that her
marriage with Mr.Kai Boccagana had been dissolved –
“Nevertheless when the Respondent in 1993 considered
CM(M) 684/2010 Page 13 of 29
marriage with the petitioner, the Respondent took the
precaution of contacting Mr.David Boccagana, as the
whereabouts of Mr.Kai Boccagana were no longer available
at that time. Upon seeking to ascertain from Mr.David
Boccagana that the Divorce had actually taken place and as
to when, the Respondent met with a very hostile response
which itself came as a shock. Nevertheless, Mr.David
Boccagana confirmed that the dissolution of the marriage had
actually taken place and that on the strength of that
dissolution, Mr.Kai Boccagana had re-married Caryn De
Fillipo. This is in addition to the fact that even prior to any
attempt which had been made by the Respondent with
Mr.Davi Boccagana regarding her divorce with Mr.Kai
Boccagana after the respondent left USA in 1985. In the old
passport of the Respondent, there is an endorsement of an
application given which is stamped for procession of
permanent residence in the USA. In the best understanding
and belief of the Respondent, the USA immigration rules that
existed then had a few salient features including that a person
could apply for being issued a Green Card Resident Alien
status inter alia upon marriage to a US Citizen. Further rules
in this regard stated that the Green card could be issued to
such an applicant, not before the lapse of one year before the
marriage. To the best understanding and memory of the
Respondent, the sequence of events would thus be that a
person, such as the Respondent would first have to entered
into the marriage with a US citizen apply for being issued a
Green Card, in the meantime obtain the Endorsement on her
Passport which endorsement was marked on her Passport on
20.09.1983, leave the US and re-enter the USA and then
subsequently be granted the Green Card. An examination of
her Green Card shows that it was issued to the Respondent
on or about 11.07.1984. Thus, it becomes evident that the
marriage of the Respondent with Mr.Kai Boccagana possibly
took place at least in any year prior to the issuance of the
Green Card. In this context, it becomes extremely pertinent
that Mr.Kai Boccagana was earlier married with Michele and
that the Divorce between Michele and Mr.Kai Boccagana
took place as late as on 07.09.1983. There is an order from a
Court in Flordia in USA which seems to suggest that the
Application filed by Mr.Kai Boccagana for divorce from the
Respondent was dismissed by The Florida court on
CM(M) 684/2010 Page 14 of 29
28.03.1991. The Respondent sought to make preliminary
inquiries from the pleadings of that case it only stands to
reason that the said pleadings may make a categoric
statement regarding the date of marriage of Mr.Kai
Boccagana and the Respondent. To the shock of the
Respondent, the Respondent has been informed that the
pleadings of that case appear to be untraceable. This is
coupled with the fact that the petitioner had soon prior in
time visited the US recently and there is an apprehension in
the mind of the Respondent that the disappearance of the
pleadings in the case may not be entirely for innocent
reasons. It is also a matter of record that Mr.Kai Boccagana
again got married on Caryn and the said marriage took place
on 22.09.1991 which further seems to suggest that Mr.Kai
Boccagana had obtained divorce from the Respondent
between 28.03.1991 and 22.09.1992. As the marriage
between the petitioner and the Respondent herein took place
on 14.11.1994, it therefore appears that the said marriage was
not a bigamous marriage as the marriage with Mr.Kai
Boccagana of the Respondent stood dissolved prior to her
marriage with the petitioner herein.”
23. It is also borne out from the record that the respondent had also in the
meanwhile applied before the State Supreme Court of New York, County
of Westchester, for a decree of annulment of her marriage with Mr.Kai
Louis Boccagna, while alleging that consent of the respondent had been
obtained by Mr.Kai Louis Boccagna, fraud and misrepresentation, and
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vide judgment dated 28 April, 2008, the Supreme Court of the State of
the New York, County of Westchester, New York, granted the decree in
the following terms:
“ ORDERED, ADJUDGED AND DECREED that the
marriage contract heretofore existing between Natasha
Kohli Plaintiff, and KAI L. BOCCAGNA Defendant is
hereby annulled based on (DRL # 140 (e)) by the Defendant
ab initio ; and it is further
CM(M) 684/2010 Page 15 of 29
ORDERED AND ADJUDGED that there is no award of
maintenance and there is no marital property and therefore no
findings with respect to equitable distribution; and it is
further
ORDERED AND ADJUDGED that the Plaintiff is
authorized to resume use of her prior surname, to wit: Chatta
and it is further
ORDERED AND ADJUDGED that the Defendant shall be
served with a copy of this judgment with notice of entry, by
the Plaintiff, within 30 days of such filing.”
24. Ms.Luthra, learned senior counsel for the petitioner has very strongly
urged before this court that reading of the written statement can only lead
to one single conclusion that the marriage between the respondent and
Mr.Kai Louis Boccagna was subsisting when she married to the petitioner
and thus the application under Order 12 Rule 6 CPC should have been
allowed and a judgment should have been passed on admission. The
learned 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.
25. While it is the case of the petitioner that the admissions of the respondents
are clear and categorical and the respondent has admitted her marriage
with Mr.Kia Louis Boccagna, and non-consummation of marriage would
not render her marriage with Mr.Kia Louis Boccagna, as a nullity, it also
the case of the petitioner that the divorce based on the judgment of the
New York Court is not on merits and it is an ex parte decree, which
cannot be recognized in India. This argument of counsel for the petitioner
is unacceptable on the ground that it is only open to Mr.Kia Louis
Boccagna, to raise a defence that the decree obtained from New York
Court is an ex parte decree and not for the petitioner. The decree is very
CM(M) 684/2010 Page 16 of 29
much binding on the respondent and Mr.Kia Louis Boccagna, till it is set
aside.
26. Without making any observations on the merits of the matter, since the
matter is pending before the trial Court for adjudication on merits, the
petitioner cannot gain any advantage by reading a few lines of the written
statement, as the written statement or any document sought to be relied
upon for the purpose of judgment on admission is to be read as a whole,
moreover the marriage between the respondent and Mr.Kia Louis
Boccagna, has been declared as null and void, ab initio and prima facie
being a decree in rem would also bind the petitioner herein.
27. Whether the marriage of respondent with Mr.Kia Louis Boccagna, was a
marriage at all in the eyes of law and the legal effect of the declaration
and whether the declaration relates back to the date of the marriage is a
complex triable issue which cannot be decided in an application under
Order 12 Rule 6 CPC. Even the question raised by the petitioner with
regard to the validity and effect of the foreign judgment is an issue which
is closely related to the first question and in the facts of this case
inseparable for the reason that the order is under challenge has been
passed on an application under Order 12 Rule 6 CPC. There is no quarrel
with the argument of counsel for the petitioner that the court can pass a
decree even on constructive admission, as has been held in the case of
Surjit Sachdev Vs. Kazakhstan Investment Services Pvt. Ltd. -66
(1997) DLT 54, 59. There is also no quarrel with the proposition that the
object of Order 12 Rule 6 CPC is to enable a party to obtain speedy
judgment as held in the case of Uttam Singh Vs. Union Bank of India
AIR 2000 SC 2740. But 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
CM(M) 684/2010 Page 17 of 29
categorical, specific, unequivocal, unambiguous and a document sought to
be relied upon has to be read as a whole and not in part [See R.K. Markan
Vs. Rajiv Kumar Markan 97 (2002) DLT 754 and Arun Kumar Jain &
Anr. Vs. Raghubir Saran Charitable Trust & Ors. – 144 (2007) DLT
43]. In the case of Jasbir Sobti & Ors. Vs. Surender Singh 135 (2006)
DLT 658, it was held that the judgment on admissions is not a matter of
right and is a matter of discretion of the court and further that where the
objection will go to the root of the matter, it would not be appropriate to
exercise discretion.
28. Counsel for the respondent has also relied upon the case of Daljit Singh
Anand Vs Harjinder Singh Anand - 149 (2008) DLT 303, while
submitting that 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.
Reliance is also placed on Parivar Seva Sansthan Vs Veena Kalra , 86
(2000) DLT 817 , wherein it has been held that where triable issues, going
to the root of the case, are raised, the Court should proceed to try the
issues raised and return the findings on merits. In the case of Baljit Kaur
Vs United Insurance Company Ltd. 70 (1997) DLT 742, it has been held
that a judgment under Order 12 Rule 6 is a matter of discretion and not a
matter of right and when a case involves question which cannot be
conveniently disposed of on a motion, under the rule, the court may, in the
exercise of discretion, refuse the motion. In the case of Shri Mohan
Prasad Jha Vs Shri Shambhu Prasad Jha - 82 (1999) DLT 281, it has
been held that the provision cannot be resorted to cut short a litigation
when factual disputes are raised between the parties and when there is no
clear and unequivocal admission in respect of a particular fact in the
written statement. Counsel for respondent has also relied upon the case of
CM(M) 684/2010 Page 18 of 29
Express Towers P Ltd. and Anr Vs Mohan Singh -2007 (97) DRJ 687,
wherein the Court has observed that under Order 12 Rule 6, a decree can
be passed when admissions are clear and unambiguous and no other
interpretation is possible and that the Court is vested with a right to ask
for independent corroboration of facts, even when denial in the pleadings
is not specific. The Hon‟ble High Court has further held that when a case
involves disputed questions of fact and law, which require adjudication
and decision, resort to judgment under Order 12 Rule 6, may not be safe
and correct.
29. 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. The
same has been enumerated in para 35 of the judgment, which is
reproduced below:
“a) Foreign Law is a question of fact, as can be deciphered from
Section 45 of Evidence Act, and without meaning any offence to
the propositions of Law cited before this Court, the same are too
contentious to be dealt with in an application U/o 12 Rule 6 CPC.
Various inferences emerge from the circumstances pleaded by the
parties. Considering the law cited by both the parties, their (sic.
there) appear a diversity of opinion in relation with the date from
which such decree is to take effect. There are other variables, in as
much as, it is yet to be seen that whether the decree, in principle, is
a decree of annulment of “voidable marriage” or a declaration as to
a “void marriage” regard being given to the case propounded by the
Respondent before the U.S. Court. Besides, the effect of decree by
the U.S. Court, would also vary, dependent upon whether it is a
decree on „merits‟ of the case and whether it takes into its sweep,
the marriage of the parties to the petition, contracted before the
grant of such decree. It is not the case that no opinion can be made
CM(M) 684/2010 Page 19 of 29
at this stage, but what transpires is the fact that once the parties are
put to trial and test of examination, the Court would be able to
come at a definite, or at least better conclusion.
b) The marriage as per the Hindu philosophy is a sacrament and
considering the scheme of the Act, the Court has to remain alive to
the sanctity of the institution. The Court, at the same time, cannot
be oblivious of the fact that the same cannot be viewed as merely a
contract, which may be the case under the European Law.
c) 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.
d) 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.
30. This court in the case of Classic Equipments (P) Ltd. Vs. Johnson
Enterprises & Ors. 2010 (2) R.A.J. 406 (Del) had an occasion to deal
with the scope and power of the High Court under Article 226 of the
Constitution. There is no doubt that the powers of the High Court are
very wide, but the High Court must ensure that the same are to be
exercised not as a court of appeal. It was further held that the High Court
should be slow to interfere unless there is grave miscarriage of justice.
Relevant portion of the judgment reads as under:
“19. It is no longer res integra that the powers of the High
Court under Articles 226 and 227 of the Constitution of
India, are very wide, however, the same are to be exercised
CM(M) 684/2010 Page 20 of 29
not as a Court of Appeal, and the High Court should be slow
to interfere unless there is grave miscarriage of justice.
20. In the case of Shamshad Ahmad Vs. Tilak Raj Bajaj
(2008) 9 SCC 1, the Apex Court has re-visited the law with
regard to the power of the High Court under Articles 226 and
227 of the Constitution of India and while taking into
consideration various judgments has held that no doubt the
power of the High Court under Articles 226 and 227 are very
wide and extensive over all Courts and Tribunals, the same
are to be exercised not as a Court of Appeal and can neither
review or re-apprise the evidence, but ordinarily should
interfere where there is grave miscarriage of justice or
flagrant violation of law:
“38. Though powers of a High Court under Articles
226 and 227 are very wide and extensive over all
courts and tribunals throughout the territories in
relation to which it exercises jurisdiction, such powers
must be exercised within the limits of law. The power
is supervisory in nature. The High Court does not act
as a court of appeal or a court of error. It can neither
review nor reappreciate, nor reweigh the evidence
upon which determination of a subordinate court or
inferior tribunal purports to be based or to correct
errors of fact or even of law and to substitute its own
decision for that of the inferior court or tribunal. The
powers are required to be exercised most sparingly and
only in appropriate cases in order to keep the
subordinate courts and inferior tribunals within the
limits of law.
39. In Chandavarkar Sita Ratna Rao v. Ashalata S.
1
Guram this Court stated: (SCC p. 458, para 16)
1
(1986) 4 SCC 447.
CM(M) 684/2010 Page 21 of 29
“ 16 . … unless there was any grave miscarriage
of justice or flagrant violation of law calling for
intervention it was not for the High Court under
Articles 226 and 227 of the Constitution to
interfere. If there is evidence on record on which
a finding can be arrived at and if the court has
not misdirected itself either on law or on fact,
then in exercise of the power under Article 226
or Article 227 of the Constitution, the High
Court should refrain from interfering with such
findings made by the appropriate authorities.”
1
40. Even prior to Chandavarkar in Bathutmal
2
Raichand Oswal v. Laxmibai R. Tarta dealing with
the supervisory power of a High Court under Article
227 of the Constitution, Bhagwati, J. (as His Lordship
2
then was) stated: ( Bathutmal Raichand Oswal case ,
SCC pp. 864-65, para 7)
“ 7 . … If an error of fact, even though apparent
on the face of the record, cannot be corrected by
means of a writ of certiorari it should follow a
fortiori that it is not subject to correction by the
High Court in the exercise of its jurisdiction
under Article 227. The power of
superintendence under Article 227 cannot be
invoked to correct an error of fact which only a
superior court can do in exercise of its statutory
power as a court of appeal. The High Court
cannot in guise of exercising its jurisdiction
under Article 227 convert itself into a court of
appeal when the legislature has not conferred a
right of appeal and made the decision of the
subordinate court or tribunal final on facts .”
(emphasis supplied)
2
(1975) 1 SCC 858.
CM(M) 684/2010 Page 22 of 29
3
41. In State of Maharashtra v. Milind this Court
observed: SCC p. 29, para 33)
“ 33 . … The power of the High Court under
Article 227 of the Constitution of India, while
exercising the power of judicial review against
an order of inferior tribunal being supervisory
and not appellate, the High Court would be
justified in interfering with the conclusion of the
tribunal only when it records a finding that the
inferior tribunal‟s conclusion is based upon
exclusion of some admissible evidence or
consideration of some inadmissible evidence or
the inferior tribunal has no jurisdiction at all or
that the finding is such, which no reasonable
man could arrive at, on the materials on record.”
4
42. In State v. Navjot Sandhu this Court reiterated:
(SCC pp. 656-57, para 28)
“ 28 . Thus the law is that Article 227 of the
Constitution of India gives the High Court the
power of superintendence over all courts and
tribunals throughout the territories in relation to
which it exercises jurisdiction. This jurisdiction
cannot be limited or fettered by any Act of the
State Legislature. The supervisory jurisdiction
extends to keeping the subordinate tribunals
within the limits of their authority and to seeing
that they obey the law. The powers under
Article 227 are wide and can be used to meet the
ends of justice. They can be used to interfere
even with an interlocutory order. However, the
power under Article 227 is a discretionary
power and it is difficult to attribute to an order
3
(2001) 1 SCC 4 : 2001 SCC (L&S) 117.
4
(2003) 6 SCC 641 : 2003 SCC (Cri) 1545.
CM(M) 684/2010 Page 23 of 29
of the High Court, such a source of power, when
the High Court itself does not in terms purport
to exercise any such discretionary power. It is
settled law that this power of judicial
superintendence, under Article 227, must be
exercised sparingly and only to keep
subordinate courts and tribunals within the
bounds of their authority and not to correct mere
errors. Further, where the statute bans the
exercise of revisional powers it would require
very exceptional circumstances to warrant
interference under Article 227 of the
Constitution of India since the power of
superintendence was not meant to circumvent
statutory law. It is settled law that the
jurisdiction under Article 227 could not be
exercised ‘as the cloak of an appeal in disguise’ .
(emphasis supplied)”
31. Applying the settled law to the facts of this case, I am of the view that the
trial Court has passed a reasoned order, keeping in view the law and facts
of the present case. The trial Court has further stated detailed reasons in
paragraphs 35 of the judgment, which have been reproduced in the paras
aforegoing why trial in the case would be necessary.
32. I see no reason to take a different view in the matter. Moreso, as this is a
family matter and cannot be equated with the commercial matter. In
family matters, the Court must tread carefully and leave no room for
doubt as in the present case, and if it is held that a valid marriage
subsisted when the respondent married the petitioner, it would have far
reaching consequences, hence, it would be appropriate that the matter is
decided by a competent Court after recording evidence rather than in an
CM(M) 684/2010 Page 24 of 29
application under Order 12 Rule 6 CPC. Similar view has been expressed
by the Apex Court in a recent decision rendered in Deoki Panjhiyara Vs.
Shashi Bhushan Narayan Azad & Anr decided on 12.12.2012 in
somewhat different facts, the wife had filed an SLP challenging the order
of the High Court. In the said case, the appellant was married to the
respondent in the year 2006. She filed a petition under Section 12 of the
Protection of Women from Domestic Violence Act, 2006, seeking certain
reliefs including the maintenance, wherein interim maintenance was
granted which was affirmed by the Sessions Judge, against which the
husband filed a writ petition before the High Court, seeking recall of the
order on the ground that he came to know subsequently that his marriage
with the appellant was void on the ground that at the time of said marriage
the appellant was married to one Rohit Kumar Mishra. The certificate of
marriage between the appellant the Rohit Kumar Mishra was placed on
record. The writ petition filed by the husband, was allowed, however, the
Supreme Court set aside the order of the High Court. Relevant
paragraphs of the judgment read as under:
“14. Admittedly, both the appellant and the respondent are
governed by the provisions of the Hindu Marriage Act,
1955. Section 11 of the Hindu Marriage Act makes it
clear that a marriage solemnized after the commencement of
the Act “shall be null and void and may, on a petition
presented by either party thereto against the other party, be
so declared by a decree of nullity if it contravenes any one
of the conditions so specified in clauses (i), (iv) and (v) of
Section 5.
15. While considering the provisions of Section 11 of the
Hindu Marriage Act, 1955 this Court in Yamunabai v.
Anantrao air 1988 SC 645 has taken the view that a marriage
covered by Section 11 is void-ipso-jure, that is, void from
the very inception. Such a marriage has to be ignored as not
existing in law at all. It was further held by this Court that a
CM(M) 684/2010 Page 25 of 29
formal declaration of the nullity of such a marriage is not a
mandatory requirement though such an option is available to
either of the parties to a marriage.
It must, however, be noticed that in Yamunabai (supra) there
was no dispute between the parties either as regards the
existence or the validity of the first marriage on the basis of
which the second marriage was held to be ipso jure void.
16. A similar view has been expressed by this Court in a
later decision in M.M. Malhotra v. Union of India 2005 (8)
SCC 351 wherein the view expressed in Yamunabai (supra)
was also noticed and reiterated.
17. However, the facts in which the decision in M.M.
Malhotra (supra) was rendered would require to be noticed in
some detail:
The appellant M.M. Malhotra was, inter alia, charged
in a departmental proceeding for contracting a plural
marriage. In reply to the charge sheet issued it was pointed
out that the allegation of plural marriage was not at all
tenable inasmuch as in a suit filed by the appellant (M.M.
Malhotra) for a declaration that the respondent (wife) was not
his wife on account of her previous marriage to one D.J.
Basu the said fact i.e. previous marriage was admitted by the
wife leading to a declaration of the invalidity of the marriage
between the parties. The opinion of this court in M.M.
Malhotra (supra) was, therefore, once again rendered in the
situation where there was no dispute with regard to the
factum of the earlier marriage of one of the spouses.
18. In the present case, however, the appellant in her
pleadings had clearly, categorically and consistently denied
that she was married to any person known as Rohit Kumar
Mishra. The legitimacy, authenticity and genuineness of the
marriage certificate dated 18.4.2003 has also been questioned
by the appellant. Though Section 11 of the aforesaid Act
gives an option to either of the parties to a void marriage to
seek a declaration of invalidity/nullity of such marriage, the
exercise of such option cannot be understood to be in all
situations voluntarily. Situations may arise when recourse to
CM(M) 684/2010 Page 26 of 29
a court for a declaration regarding the nullity of a marriage
claimed by one of the spouses to be a void marriage, will
have to be insisted upon in departure to the normal rule.
This, in our view, is the correct ratio of the decision of this
Court in Yamunabai (supra) and M.M. Malhotra (supra). In
this regard, we may take note of a recent decision rendered
by this Court in A. Subash Babu v. State of Andhra
Pradesh & Anr., 2011 (7) SCC 616, while dealing with the
question whether the wife of a second marriage contracted
during the validity of the first marriage of the husband would
be a “person aggrieved” under Section 198 (1)(c) of the
Code of Criminal Procedure to maintain a complaint
alleging commission of offences under section 494 and 495
IPC by the husband. The passage extracted below effectively
illuminates the issue:
“Though the law specifically does not cast obligation
on either party to seek declaration of nullity of
marriage and it may be open to the parties even
without recourse to the Court to treat the marriage as a
nullity, such a course is neither prudent nor
intended and a declaration in terms of Section 11 of
the Hindu Marriage Act will have to be asked for, for
the purpose of precaution and/or record. Therefore,
until the declaration contemplated by Section 11 of
the Hindu Marriage Act is made by a competent Court,
the woman with whom second marriage is
solemnized continues to be the wife within the
meaning of Section 494 IPC and would be entitled
to maintain a complaint against her husband.”
19. In the present case, if according to the respondent, the
marriage between him and the appellant was void on account
of the previous marriage between the appellant and Rohit
Kumar Mishra the respondent ought to have obtained the
necessary declaration from the competent court in view of
the highly contentious questions raised by the appellant
on the aforesaid score. It is only upon a declaration of
CM(M) 684/2010 Page 27 of 29
nullity or annulment of the marriage between the parties
by a competent court that any consideration of the question
whether the parties had lived in a “relationship in the nature
of marriage” would be justified. In the absence of any
valid decree of nullity or the necessary declaration the court
will have to proceed on the footing that the relationship
between the parties is one of marriage and not in the nature
of marriage. We would also like to emphasise that any
determination of the validity of the marriage between the
parties could have been made only by a competent court in
an appropriate proceeding by and between the parties and
in compliance with all other requirements of law. Mere
production of a marriage certificate issued under Section 13
of the Special Marriage Act, 1954 in support of the claimed
first marriage of the appellant with Rohit Kumar Mishra was
not sufficient for any of the courts, including the High
Court, to render a complete and effective decision with
regard to the marital status of the parties and that too in a
collateral proceeding for maintenance. Consequently, we
hold that in the present case until the invalidation of the
marriage between the appellant and the respondent is made
by a competent court it would only be correct to proceed on
the basis that the appellant continues to be the wife of the
respondent so as to entitle her to claim all benefits and
protection available under the DV Act, 2005.
20. Our above conclusion would render consideration of
any of the other issues raised wholly unnecessary and
academic. Such an exercise must surely be avoided.”
33. In this matter highly contentious issues have been raised by the parties
which can best be decided on evidence.
34. In view of above, no grounds are made out to interfere in the judgment
passed by learned trial court on 10.03.2010. The present petition and the
application are accordingly, dismissed.
CM(M) 684/2010 Page 28 of 29
35. At this stage, counsel for the petitioner submits that a direction should be
issued to the trial court for day-to-day hearing in the matter. The order-
sheets have been perused, which have been produced in court, which
shows that the trial court has already been giving short dates in the matter
and both the counsel are pursuing the matter without any unnecessary
adjournment. However, having regard to the age of the petitioner, the
trial court is directed to dispose of the matter, expeditiously.
G.S.SISTANI, J
JANUARY 17, 2013
ssn
CM(M) 684/2010 Page 29 of 29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 684/2010 & CM.13618/2010
% Judgment dated 17.01.2013
MON MOHAN KOHLI ..... Petitioner
Through: Ms.Geeta Luthra, Sr. Advocate with
Mr.Ankur Mahindroo, Advocate
versus
NATASHA KOHLI ..... Respondent
Through: Mr.Rajshekhar Rao, Ms.Anu Bagai,
Mr.Bhuvan Mishra and Ms.Manini Brar,
Advocates
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
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.
CM(M) 684/2010 Page 1 of 29
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
CM(M) 684/2010 Page 2 of 29
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 doubt
that the written statement, itself is redolent of subsistence of
marriage with Mr.Boccagna, and the subsequent attempts of
the respondent for its annulment under Rule 140 (e) of the
Domestic Relations Law, State of New York, goes on show
that the respondent had accepted the subsistence of marriage
with Mr.Boccagna.
17. Coming now to the contention that whether the
admission is specific and unambiguous. I am of the opinion
that the requirement of law to the effect that an admission
has to be specific, clear, unambiguous and unequivocal, does
not depend upon the choice of the words in the pleadings or
as to how are the admissions couched in the phrases, but
would largely depend upon the subsistence of the pleadings.
Admissions may be presented in a circuitous manner, where
a party, though admitting the fact, does not wish it to be
taken against him, outrightly. The Court, nevertheless, can
look into the substance, in order to find out as to whether any
other interpretation is possible or whether the explanation,
provided by the party against whom such admission is being
CM(M) 684/2010 Page 3 of 29
used, takes the case of the party to such a position, where the
Court is rendered of the view that it is not safe to conclude
upon the admission, and regardless the fact that admission
itself amount to evidence, that the very question demands
further corroboration and a higher quotient of evidence. A
reading of the written statement leaves this court in no doubt
as to the fact that as far as the marriage of the respondent
with Mr.Boccagna is concerned, the same is clearly admitted
by Respondent.”
5. Ms.Luthra, also contends that the admission made by the respondent in
her written statement is specific and unambiguous and thus satisfies the
ingredients of Order 12 Rule 6 CPC, according to which the admission
has to be specific clear, unambiguous and unequivocal. It is submitted
that even indirect admissions and admissions made in documents and not
specifically in pleadings are to be considered as admissions while
disposing of an application under Order 12 Rule 6 of the CPC. It is
contended that in view of the admissions made by the respondent there is
no room for doubt that the respondent was married to one Mr.Kia Louis
Boccagna, at the time of marriage with the petitioner. It is thus contended
that since the admission is binding on the respondent, the petitioner is
entitled to a decree of nullity. The relevant portions of the written
statement filed by the respondent (wife) reads as under:
“As regards her marriage with Mr.Kia Louis Boccagna, it is correct
that she had been married for a while to the said Mr.Kai Boccagna.
The said marriage was nevertheless dissolved. As the marriage
with Mr.Kai Boccagna is an episode in the respondent‟s life that is
almost 25 years in the past, the exact dates are no longer in the
memory of the respondent.”
6. Ms.Luthra, learned senior counsel for the petitioner also submits that the
respondent has admitted that she was never a party to any dissolution of
CM(M) 684/2010 Page 4 of 29
marriage, although she had been given to understand by Mr.Kia Louis
Boccagna and Mr.David Boccagna that her marriage with Mr.Kia Louis
Boccagna has been dissolved. It is submitted that such a plea is
preposterous as no unilateral dissolution of marriage is known in civil
law. She further contends that under the principles of natural justice and
in any system of civil jurisprudence, no final order can be obtained by any
party against another without giving notice to the said party. It is
submitted that there is no explanation as to how the respondent came to
such an understanding that her marriage with Mr.Kia Louis Boccagna
stood dissolved. It is also contended that simply because respondent‟s
husband Mr.Kia Louis Boccagna had entered into a bigamous and
adulterous relationship with Ms.Caryn D Fillipo, as alleged by the
respondent, can be of no benefit to the respondent to categorically
establish dissolution of her earlier marriage and further the assurances
made by her are patently false and she has committed perjury with
impunity, knowing fully well that the marriage with Mr.Kia Louis
Boccagna was subsisting.
7. It is next contended that after filing of the written statement the
respondent indulged in forum hunting and approached the Supreme Court
of the State of New York, Westchester County (County Court) in the State
of New York, where according to the petitioner, the parties had never
resided, by filing a petition for annulment of her marriage with Mr.Kia
Louis Boccagna under Section 140 (e) of the Domestic Relation Law
(DRL) on the ground of non-consummation of marriage. It is also
submitted by Ms.Luthra that the said petition was fraudulent and collusive
in nature. She further contends that the petition for annulment of her
marriage with Mr.Kia Louis Boccagna was filed on 21.11.2007 on the
ground of alleged non-consummation of marriage after a gap of 25 years
CM(M) 684/2010 Page 5 of 29
is meaningless particularly when no reply was filed by Mr.Kia Louis
Boccagna in the County Court. After the decree of annulment of marriage
was obtained by the respondent, respondent sought to amend her written
statement on 30.04.2009. It is submitted that although the stand taken by
the respondent in her written statement filed at the first instance was that
most likely her marriage has been dissolved with Mr.Kia Louis Boccagna
as per the assurances given to her by David Boccagna, father of her
husband (Mr.Kia Louis Boccagna), the respondent sought to rely upon a
decree of annulment passed under Section 140 (e) of the Domestic
Relations Law, which resulted in an annulment ab initio of marriage with
Mr.Kia Louis Boccagna and the said annulment operated as nullifying her
marriage and had made the effect of making her bigamous marriage with
the petitioner as a valid marriage.
8. According to the petitioner a void marriage in terms of Section 5(1) (a) of
the Hindu Marriage Act, cannot be validated by any subsequent act or
event. It is contended that the learned trial court had erred in holding that
evidence would be required to decide the said issue, although this was a
pure question of law. It is contended that the trial court has grossly erred
in not coming into a finding that the said foreign judgment has no effect
and no conclusiveness in view of section 13 of the Code of Civil
Procedure. Reliance is placed on Section 13 of the CPC, which is also
reproduced below:
“ 13.When foreign judgment not conclusive.-
A foreign judgment shall be conclusive as to any matter thereby
directly adjudicated upon between the same parties or between
parties under whom they or any of them claim litigating under the
same title except-
(a) where it has not been pronounced by a Court of
CM(M) 684/2010 Page 6 of 29
competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be
founded on an incorrect view of international law or a
refusal to recognise the law of [India] in cases in which
such law is applicable;
(d) where the proceedings in which the judgment was
obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law
in force in [India].
9. Ms.Luthra, counsel for the petitioner submits that the requirement and
mandate of Section 13 would show that there has to be direct adjudication
between the same parties and thus there is no conclusiveness of a foreign
judgment neither it is existing in the present case. It is submitted that the
foreign judgment is not binding on the petitioner as there is no
conclusiveness between the petitioner and the respondent.
10. It is contended that the only issue which was to be decided / adjudicated
by the trial Court was the effect of the declaration that the marriage
between the respondent and Mr.Kia Louis Boccagna had been annulled ab
initio and whether the annulment could have any effect on the third party/
stranger. It is also the contention of counsel for the petitioner that no
decree of foreign court is binding on the Indian Courts if it was not inter
se the parties. By an application for amendment, the subsequent events
and facts were brought on record when the amendment was allowed and
the amended written statement was taken on record.
11. Another submission made by Ms.Luthra, counsel for the petitioner is 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
CM(M) 684/2010 Page 7 of 29
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. Section 5 (i) of the
Hindu Marriage Act, reads as under:
“ 5. Conditions for a Hindu marriage. - A marriage may be
solemnized between any two Hindus, if the following
conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the
marriage ”
12. Relying on Section 5, Ms.Luthra, submits that the marriage between the
petitioner and the respondent is nullified as the respondent had a living
spouse at the time of marriage with the petitioner and the respondent has
played a fraud upon the court and is guilty of bigamy, perjury and
contempt of court. It is contended that the respondent in reply to the
application under Order 12 Rule 6 CPC, in the written statement and in
the application seeking amendment of the written statement clearly
establishes that there is clear and categorical admission made by the
respondent with regard to the subsistence of her marriage with Mr.Kia
Louis Boccagna, at the time of her marriage with the petitioner. In
addition to the grounds raised by her that the decree dated 28.04.2008 is
not binding or unenforceable in India under Section 13 of the Code of
Civil Procedure.
13. Ms.Luthra, contends that the said decree was collusive in nature, barred
by law of limitation and even otherwise a decree which has been declared
as void ab initio could not have any binding effect on the third party, who
would be affected. Ms.Luthra has placed reliance on Begins Vs. Begins
1958 555 for the said proposition.
14. Reliance is also placed on Smt. Padi & Ors. Vs. Union of India AIR
CM(M) 684/2010 Page 8 of 29
1963 Himachal Pradesh 16 (V 50 C6) and more particularly paragraph 3,
which reads as under:
“3. It has not been disputed that the petitioner was married to Smt.
Mathi about 20 years back or that she was alive at the time when he
married Smt. Padi or that the last mentioned marriage took place
after the coming into force of the Hindu Marriage Act 1955.
Section 5 of the aforesaid Act inter alia provides that a marriage
may be solemnized between two Hindus if neither party has a
spouse living at the time of the marriage. Section 11 thereof lays
down that any marriage solemnized after the coming into force of
the Act shall be null and void and Section 17 emphasizes that any
marriage between two Hindus solemnized after the commencement
of this Act is void if at the date of such marriage either party has a
husband or wife living and applies the provisions of Sections 494
and 495 of the Indian Penal Code. The conjoint effect of the
aforesaid sections is that if a marriage is solemnized after the
commencement of the Hindu Marriage Act between persons either
of whom has a spouse living at the time of the marriage the
marriage is void and the provisions of Sections 494 and 495 are
attracted to marriages between Hindus also. In the instant case it
has already been noticed that at the time when the petitioner
married Smt. Padi his wife Smt. Mathi was alive and there is thus
no escape from the conclusion that the marriage between the
petitioner and Smt. Padi was void. A thing which is void has no
existence in the eye of law. Since in the eye of law the relationship
of husband and wife did not exist between the petitioner and Smt.
Padi her subsequent marriage with another person will not attract
Section 494, I.P.C.”
15. Ms.Luthra, has also strongly urged before this court that the decree of
nullity which has been obtained by respondent from a foreign court is not
binding on the petitioner. In support of her contention, learned senior
counsel for the petitioner has relied on various judgments, which have
been discussed in detail by the trial Court in the order dated 10.03.2010.
16. This petition is opposed by the respondent on the ground that the
application filed by the petitioner under Order 12 Rule 6 CPC has been
CM(M) 684/2010 Page 9 of 29
dismissed by way of a reasoned order, which requires no interference in
proceedings under Article 227 of the Constitution of India. It is further
submitted that the petitioner is in effect seeking review/ re-appreciation of
evidence/ material before the trial court, which is not contemplated under
Articles 226/ 227 of the Constitution of India, which only confers
supervisory jurisdiction on the High Courts to examine whether an
inferior court has proceeded within its parameters or not.
17. Mr.Rao, counsel for the respondent further submits that while exercising
supervisory jurisdiction under Article 227 of the Constitution of India, the
High Court does not act as an Appellate Court and cannot re-weigh or
review the evidence on the basis of which the Court below has based its
decision. Elaborating his argument further, Mr.Rao, counsel for the
respondent submits that it has been repeatedly held that the jurisdiction
under Article 227 of the Constitution of India cannot be used even to
correct errors of law in the decision under challenge.
18. Counsel for respondent next contends that the impugned judgment has
been passed by the trial court in an application filed by the petitioner
under Order 12 Rule 6 of the CPC, and such a relief cannot be claimed as
a matter of right, but only as a matter of discretion and this discretion
cannot be interfered with unless there is gross abuse of the process and the
trial court has reached a conclusion which no reasonable man could in the
circumstances of the case. It is also the contention of counsel for the
respondent that to entitle a party for a decree on admission, the admission
has to be unequivocal, unambiguous, specific and positive. The pleadings
cannot be looked into piecemeal or dissected, but are to be considered as a
whole. The written statement in the present case raises triable issues,
which go to the root of the matter.
th
19. Mr.Rao, submits that on 17 July, 2007 the petitioner had filed a petition
CM(M) 684/2010 Page 10 of 29
under Section 11 of the Hindu Marriage Act, 1955 for a Decree of Nullity
and in the alternative under Section 12(1)(C) for the Annulment of
marriage between the petitioner and the Respondent on the ground that
the respondent marriage with a person named Mr.Kai Boccagna was
subsisting at the time of the marriage between the petitioner and the
th
respondent in the year 1994. The respondent, on 24 October 2007, filed
her Written Statement to the petition stating that although the respondent
did get married to Mr.Kai Boccagna but the same was dissolved and in
fact, Mr.Kai Boccagna had subsequently married a lady named Ms.Caryn
de Philipo. However, in order to present the complete state of facts before
the Hon‟ble Court, the Respondent also categorically stated in the Written
Statement that the Respondent was in the process of ascertaining detailed
facts regarding the marriage between the Respondent with Mr.Kai
Boccagna as well as the date of its dissolution and as soon as the same
were available with her, she would bring the same before the Hon‟ble
Court by way of an amendment to the Written Statement. Thereafter,
having come to know about the date of her marriage with Mr.Kai
Boccagna and the fact that, contrary to what the respondent had been
given to understand, the marriage between the Respondent and Mr.Kai
Boccagna had still not been dissolved, the Respondent immediately
moved the U.S. Court which after due consideration of the material on
record before it, annulled the marriage of the Respondent with Mr.Kai
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Boccagna ab initio vide its Order dated 28 April 2008.
20. It is also submitted by Mr.Rao, counsel for the respondent that in order to
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bring this subsequent event of the U.S. Decree dated 28 April 2008 on
the record of the learned trial court, the respondent moved an application
th
under Order 6 Rule 17, Code of Civil Procedure, 1908 on 5 July 2008. It
is pertinent to mention that this Application has been allowed by the
CM(M) 684/2010 Page 11 of 29
learned trial court and remains unchallenged by the Petitioner.
21. After the amendment was allowed, the petitioner made an application
under Order 12 Rule 6 CPC. It is strenuously urged before this court that
when the first written statement was filed, the respondent had reserved her
right to file an amendment to the written statement as and when she would
come in possession of better particulars. The factum of annulment of
marriage of respondent with Mr.Kia Louis Boccagna ab initio raises a
triable issue for which evidence is required to be led and thus would not
tantamount to admission within the meaning of Order 12 Rule 6 of the
CPC.
22. I have heard counsel for the parties and carefully considered their rival
submissions. Since both the parties have relied upon paragraph 6 of the
written statement, it would be useful to reproduce the same:
“6. Para 6 of the Petition is vague, wrong and hence
denied. It is denied that before filing of the Petition on
31/1/07, under Section 13(1) (i-a) of the Hindu Marriage Act,
the Petitioner started making inquiries about the antecedents
of the respondent, as alleged. The allegation made in the Para
under reply are vague and baseless. The petitioner is an
extremely mischievous person who is also a habitual liar. It
is stated that at the time when the parties entered into the
marriage, the Respondent had completely, fully and
truthfully made a complete disclosure of all her past
relationships to the petitioner. The petitioner was always
aware that the respondent had a relationship with Mr.Prakash
Mehta, whom she never married. The petitioner was also
aware that after the relationship ended, the respondent had
made absolutely no financial gains from that relationship. As
regards the allegation of the petitioner of her friendship with
Mr.David Boccagana, the same has been mischievously
stated herein as the petitioner was always aware, as disclosed
to him by the Respondent that Mr.David Boccagana was a
business partner of the Respondent when the Respondent as a
young lady had traveled to USA to start a business. Mr.David
CM(M) 684/2010 Page 12 of 29
Boccagana and the Respondent had entered into a partnership
in terms of which the Respondent had opened a boutique in
florida in the name and style of “Natasha”. As regards her
marriage with Mr.Kai Boccagana, it is correct that she had
been married for a while to the said Mr.Kai Boccagana. The
said marriage was nevertheless dissolved. As the marriage
with Mr.Kai Boccagana is an episode in the respondent‟s life
that is almost 25 years in the past, the exact dates are no
longer in the memory of the Respondent. Nevertheless, it is
stated that the petitioner herein has pleaded these facts also
before the Hon‟ble High Court of Delhi where there is
litigation pending between the parties. Even before the High
Court of Delhi, the Respondent herein in her reply has prima
facie demonstrated that despite much passage of time and
despite the fact that the Respondent is in the process of
ascertaining all the detailed facts, it is prima facie evident
that the marriage of the Respondent with the petitioner is a
valid and subsisting marriage. It is stated that the Respondent
is in the process of ascertaining the detailed dates and facts
regarding the date of marriage with Mr.Kai Boccagana and
the date of dissolution of the marriage. For this process, it is
ascertained by the Respondent that in the United State of
America, after the September 11 attack in the Twin Trade
Towers in New York, the confidential information takes time
to be unearthed, as such time is required for the same. As and
when, the Respondent is in possession of better particulars,
the Respondent‟s reserves her right to amend the present
Written Statement to bring such subsequently discovered
facts on record. In this respect, it is stated that the
Respondent traveled to USA on an H-2 Visa, which was
issued on or about 02.11.1982 and which was valid up to
15.08.1983. At the time of her marriage with Mr.Kai
Boccagana, the Respondent was unaware that Mr.Kai
Boccagana had been married earlier to one Mrs.Michle
Boccagana. The Respondent continued her business in the
USA till 1985 after which she left USA, leaving behind all
that she had created. Once more she did not gain anything
monetarily out of the business or relationship in Flordia. The
Respondent had always been given to understand by
Mr.David Boccagana and Mr.Kai Boccagana that her
marriage with Mr.Kai Boccagana had been dissolved –
“Nevertheless when the Respondent in 1993 considered
CM(M) 684/2010 Page 13 of 29
marriage with the petitioner, the Respondent took the
precaution of contacting Mr.David Boccagana, as the
whereabouts of Mr.Kai Boccagana were no longer available
at that time. Upon seeking to ascertain from Mr.David
Boccagana that the Divorce had actually taken place and as
to when, the Respondent met with a very hostile response
which itself came as a shock. Nevertheless, Mr.David
Boccagana confirmed that the dissolution of the marriage had
actually taken place and that on the strength of that
dissolution, Mr.Kai Boccagana had re-married Caryn De
Fillipo. This is in addition to the fact that even prior to any
attempt which had been made by the Respondent with
Mr.Davi Boccagana regarding her divorce with Mr.Kai
Boccagana after the respondent left USA in 1985. In the old
passport of the Respondent, there is an endorsement of an
application given which is stamped for procession of
permanent residence in the USA. In the best understanding
and belief of the Respondent, the USA immigration rules that
existed then had a few salient features including that a person
could apply for being issued a Green Card Resident Alien
status inter alia upon marriage to a US Citizen. Further rules
in this regard stated that the Green card could be issued to
such an applicant, not before the lapse of one year before the
marriage. To the best understanding and memory of the
Respondent, the sequence of events would thus be that a
person, such as the Respondent would first have to entered
into the marriage with a US citizen apply for being issued a
Green Card, in the meantime obtain the Endorsement on her
Passport which endorsement was marked on her Passport on
20.09.1983, leave the US and re-enter the USA and then
subsequently be granted the Green Card. An examination of
her Green Card shows that it was issued to the Respondent
on or about 11.07.1984. Thus, it becomes evident that the
marriage of the Respondent with Mr.Kai Boccagana possibly
took place at least in any year prior to the issuance of the
Green Card. In this context, it becomes extremely pertinent
that Mr.Kai Boccagana was earlier married with Michele and
that the Divorce between Michele and Mr.Kai Boccagana
took place as late as on 07.09.1983. There is an order from a
Court in Flordia in USA which seems to suggest that the
Application filed by Mr.Kai Boccagana for divorce from the
Respondent was dismissed by The Florida court on
CM(M) 684/2010 Page 14 of 29
28.03.1991. The Respondent sought to make preliminary
inquiries from the pleadings of that case it only stands to
reason that the said pleadings may make a categoric
statement regarding the date of marriage of Mr.Kai
Boccagana and the Respondent. To the shock of the
Respondent, the Respondent has been informed that the
pleadings of that case appear to be untraceable. This is
coupled with the fact that the petitioner had soon prior in
time visited the US recently and there is an apprehension in
the mind of the Respondent that the disappearance of the
pleadings in the case may not be entirely for innocent
reasons. It is also a matter of record that Mr.Kai Boccagana
again got married on Caryn and the said marriage took place
on 22.09.1991 which further seems to suggest that Mr.Kai
Boccagana had obtained divorce from the Respondent
between 28.03.1991 and 22.09.1992. As the marriage
between the petitioner and the Respondent herein took place
on 14.11.1994, it therefore appears that the said marriage was
not a bigamous marriage as the marriage with Mr.Kai
Boccagana of the Respondent stood dissolved prior to her
marriage with the petitioner herein.”
23. It is also borne out from the record that the respondent had also in the
meanwhile applied before the State Supreme Court of New York, County
of Westchester, for a decree of annulment of her marriage with Mr.Kai
Louis Boccagna, while alleging that consent of the respondent had been
obtained by Mr.Kai Louis Boccagna, fraud and misrepresentation, and
th
vide judgment dated 28 April, 2008, the Supreme Court of the State of
the New York, County of Westchester, New York, granted the decree in
the following terms:
“ ORDERED, ADJUDGED AND DECREED that the
marriage contract heretofore existing between Natasha
Kohli Plaintiff, and KAI L. BOCCAGNA Defendant is
hereby annulled based on (DRL # 140 (e)) by the Defendant
ab initio ; and it is further
CM(M) 684/2010 Page 15 of 29
ORDERED AND ADJUDGED that there is no award of
maintenance and there is no marital property and therefore no
findings with respect to equitable distribution; and it is
further
ORDERED AND ADJUDGED that the Plaintiff is
authorized to resume use of her prior surname, to wit: Chatta
and it is further
ORDERED AND ADJUDGED that the Defendant shall be
served with a copy of this judgment with notice of entry, by
the Plaintiff, within 30 days of such filing.”
24. Ms.Luthra, learned senior counsel for the petitioner has very strongly
urged before this court that reading of the written statement can only lead
to one single conclusion that the marriage between the respondent and
Mr.Kai Louis Boccagna was subsisting when she married to the petitioner
and thus the application under Order 12 Rule 6 CPC should have been
allowed and a judgment should have been passed on admission. The
learned 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.
25. While it is the case of the petitioner that the admissions of the respondents
are clear and categorical and the respondent has admitted her marriage
with Mr.Kia Louis Boccagna, and non-consummation of marriage would
not render her marriage with Mr.Kia Louis Boccagna, as a nullity, it also
the case of the petitioner that the divorce based on the judgment of the
New York Court is not on merits and it is an ex parte decree, which
cannot be recognized in India. This argument of counsel for the petitioner
is unacceptable on the ground that it is only open to Mr.Kia Louis
Boccagna, to raise a defence that the decree obtained from New York
Court is an ex parte decree and not for the petitioner. The decree is very
CM(M) 684/2010 Page 16 of 29
much binding on the respondent and Mr.Kia Louis Boccagna, till it is set
aside.
26. Without making any observations on the merits of the matter, since the
matter is pending before the trial Court for adjudication on merits, the
petitioner cannot gain any advantage by reading a few lines of the written
statement, as the written statement or any document sought to be relied
upon for the purpose of judgment on admission is to be read as a whole,
moreover the marriage between the respondent and Mr.Kia Louis
Boccagna, has been declared as null and void, ab initio and prima facie
being a decree in rem would also bind the petitioner herein.
27. Whether the marriage of respondent with Mr.Kia Louis Boccagna, was a
marriage at all in the eyes of law and the legal effect of the declaration
and whether the declaration relates back to the date of the marriage is a
complex triable issue which cannot be decided in an application under
Order 12 Rule 6 CPC. Even the question raised by the petitioner with
regard to the validity and effect of the foreign judgment is an issue which
is closely related to the first question and in the facts of this case
inseparable for the reason that the order is under challenge has been
passed on an application under Order 12 Rule 6 CPC. There is no quarrel
with the argument of counsel for the petitioner that the court can pass a
decree even on constructive admission, as has been held in the case of
Surjit Sachdev Vs. Kazakhstan Investment Services Pvt. Ltd. -66
(1997) DLT 54, 59. There is also no quarrel with the proposition that the
object of Order 12 Rule 6 CPC is to enable a party to obtain speedy
judgment as held in the case of Uttam Singh Vs. Union Bank of India
AIR 2000 SC 2740. But 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
CM(M) 684/2010 Page 17 of 29
categorical, specific, unequivocal, unambiguous and a document sought to
be relied upon has to be read as a whole and not in part [See R.K. Markan
Vs. Rajiv Kumar Markan 97 (2002) DLT 754 and Arun Kumar Jain &
Anr. Vs. Raghubir Saran Charitable Trust & Ors. – 144 (2007) DLT
43]. In the case of Jasbir Sobti & Ors. Vs. Surender Singh 135 (2006)
DLT 658, it was held that the judgment on admissions is not a matter of
right and is a matter of discretion of the court and further that where the
objection will go to the root of the matter, it would not be appropriate to
exercise discretion.
28. Counsel for the respondent has also relied upon the case of Daljit Singh
Anand Vs Harjinder Singh Anand - 149 (2008) DLT 303, while
submitting that 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.
Reliance is also placed on Parivar Seva Sansthan Vs Veena Kalra , 86
(2000) DLT 817 , wherein it has been held that where triable issues, going
to the root of the case, are raised, the Court should proceed to try the
issues raised and return the findings on merits. In the case of Baljit Kaur
Vs United Insurance Company Ltd. 70 (1997) DLT 742, it has been held
that a judgment under Order 12 Rule 6 is a matter of discretion and not a
matter of right and when a case involves question which cannot be
conveniently disposed of on a motion, under the rule, the court may, in the
exercise of discretion, refuse the motion. In the case of Shri Mohan
Prasad Jha Vs Shri Shambhu Prasad Jha - 82 (1999) DLT 281, it has
been held that the provision cannot be resorted to cut short a litigation
when factual disputes are raised between the parties and when there is no
clear and unequivocal admission in respect of a particular fact in the
written statement. Counsel for respondent has also relied upon the case of
CM(M) 684/2010 Page 18 of 29
Express Towers P Ltd. and Anr Vs Mohan Singh -2007 (97) DRJ 687,
wherein the Court has observed that under Order 12 Rule 6, a decree can
be passed when admissions are clear and unambiguous and no other
interpretation is possible and that the Court is vested with a right to ask
for independent corroboration of facts, even when denial in the pleadings
is not specific. The Hon‟ble High Court has further held that when a case
involves disputed questions of fact and law, which require adjudication
and decision, resort to judgment under Order 12 Rule 6, may not be safe
and correct.
29. 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. The
same has been enumerated in para 35 of the judgment, which is
reproduced below:
“a) Foreign Law is a question of fact, as can be deciphered from
Section 45 of Evidence Act, and without meaning any offence to
the propositions of Law cited before this Court, the same are too
contentious to be dealt with in an application U/o 12 Rule 6 CPC.
Various inferences emerge from the circumstances pleaded by the
parties. Considering the law cited by both the parties, their (sic.
there) appear a diversity of opinion in relation with the date from
which such decree is to take effect. There are other variables, in as
much as, it is yet to be seen that whether the decree, in principle, is
a decree of annulment of “voidable marriage” or a declaration as to
a “void marriage” regard being given to the case propounded by the
Respondent before the U.S. Court. Besides, the effect of decree by
the U.S. Court, would also vary, dependent upon whether it is a
decree on „merits‟ of the case and whether it takes into its sweep,
the marriage of the parties to the petition, contracted before the
grant of such decree. It is not the case that no opinion can be made
CM(M) 684/2010 Page 19 of 29
at this stage, but what transpires is the fact that once the parties are
put to trial and test of examination, the Court would be able to
come at a definite, or at least better conclusion.
b) The marriage as per the Hindu philosophy is a sacrament and
considering the scheme of the Act, the Court has to remain alive to
the sanctity of the institution. The Court, at the same time, cannot
be oblivious of the fact that the same cannot be viewed as merely a
contract, which may be the case under the European Law.
c) 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.
d) 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.
30. This court in the case of Classic Equipments (P) Ltd. Vs. Johnson
Enterprises & Ors. 2010 (2) R.A.J. 406 (Del) had an occasion to deal
with the scope and power of the High Court under Article 226 of the
Constitution. There is no doubt that the powers of the High Court are
very wide, but the High Court must ensure that the same are to be
exercised not as a court of appeal. It was further held that the High Court
should be slow to interfere unless there is grave miscarriage of justice.
Relevant portion of the judgment reads as under:
“19. It is no longer res integra that the powers of the High
Court under Articles 226 and 227 of the Constitution of
India, are very wide, however, the same are to be exercised
CM(M) 684/2010 Page 20 of 29
not as a Court of Appeal, and the High Court should be slow
to interfere unless there is grave miscarriage of justice.
20. In the case of Shamshad Ahmad Vs. Tilak Raj Bajaj
(2008) 9 SCC 1, the Apex Court has re-visited the law with
regard to the power of the High Court under Articles 226 and
227 of the Constitution of India and while taking into
consideration various judgments has held that no doubt the
power of the High Court under Articles 226 and 227 are very
wide and extensive over all Courts and Tribunals, the same
are to be exercised not as a Court of Appeal and can neither
review or re-apprise the evidence, but ordinarily should
interfere where there is grave miscarriage of justice or
flagrant violation of law:
“38. Though powers of a High Court under Articles
226 and 227 are very wide and extensive over all
courts and tribunals throughout the territories in
relation to which it exercises jurisdiction, such powers
must be exercised within the limits of law. The power
is supervisory in nature. The High Court does not act
as a court of appeal or a court of error. It can neither
review nor reappreciate, nor reweigh the evidence
upon which determination of a subordinate court or
inferior tribunal purports to be based or to correct
errors of fact or even of law and to substitute its own
decision for that of the inferior court or tribunal. The
powers are required to be exercised most sparingly and
only in appropriate cases in order to keep the
subordinate courts and inferior tribunals within the
limits of law.
39. In Chandavarkar Sita Ratna Rao v. Ashalata S.
1
Guram this Court stated: (SCC p. 458, para 16)
1
(1986) 4 SCC 447.
CM(M) 684/2010 Page 21 of 29
“ 16 . … unless there was any grave miscarriage
of justice or flagrant violation of law calling for
intervention it was not for the High Court under
Articles 226 and 227 of the Constitution to
interfere. If there is evidence on record on which
a finding can be arrived at and if the court has
not misdirected itself either on law or on fact,
then in exercise of the power under Article 226
or Article 227 of the Constitution, the High
Court should refrain from interfering with such
findings made by the appropriate authorities.”
1
40. Even prior to Chandavarkar in Bathutmal
2
Raichand Oswal v. Laxmibai R. Tarta dealing with
the supervisory power of a High Court under Article
227 of the Constitution, Bhagwati, J. (as His Lordship
2
then was) stated: ( Bathutmal Raichand Oswal case ,
SCC pp. 864-65, para 7)
“ 7 . … If an error of fact, even though apparent
on the face of the record, cannot be corrected by
means of a writ of certiorari it should follow a
fortiori that it is not subject to correction by the
High Court in the exercise of its jurisdiction
under Article 227. The power of
superintendence under Article 227 cannot be
invoked to correct an error of fact which only a
superior court can do in exercise of its statutory
power as a court of appeal. The High Court
cannot in guise of exercising its jurisdiction
under Article 227 convert itself into a court of
appeal when the legislature has not conferred a
right of appeal and made the decision of the
subordinate court or tribunal final on facts .”
(emphasis supplied)
2
(1975) 1 SCC 858.
CM(M) 684/2010 Page 22 of 29
3
41. In State of Maharashtra v. Milind this Court
observed: SCC p. 29, para 33)
“ 33 . … The power of the High Court under
Article 227 of the Constitution of India, while
exercising the power of judicial review against
an order of inferior tribunal being supervisory
and not appellate, the High Court would be
justified in interfering with the conclusion of the
tribunal only when it records a finding that the
inferior tribunal‟s conclusion is based upon
exclusion of some admissible evidence or
consideration of some inadmissible evidence or
the inferior tribunal has no jurisdiction at all or
that the finding is such, which no reasonable
man could arrive at, on the materials on record.”
4
42. In State v. Navjot Sandhu this Court reiterated:
(SCC pp. 656-57, para 28)
“ 28 . Thus the law is that Article 227 of the
Constitution of India gives the High Court the
power of superintendence over all courts and
tribunals throughout the territories in relation to
which it exercises jurisdiction. This jurisdiction
cannot be limited or fettered by any Act of the
State Legislature. The supervisory jurisdiction
extends to keeping the subordinate tribunals
within the limits of their authority and to seeing
that they obey the law. The powers under
Article 227 are wide and can be used to meet the
ends of justice. They can be used to interfere
even with an interlocutory order. However, the
power under Article 227 is a discretionary
power and it is difficult to attribute to an order
3
(2001) 1 SCC 4 : 2001 SCC (L&S) 117.
4
(2003) 6 SCC 641 : 2003 SCC (Cri) 1545.
CM(M) 684/2010 Page 23 of 29
of the High Court, such a source of power, when
the High Court itself does not in terms purport
to exercise any such discretionary power. It is
settled law that this power of judicial
superintendence, under Article 227, must be
exercised sparingly and only to keep
subordinate courts and tribunals within the
bounds of their authority and not to correct mere
errors. Further, where the statute bans the
exercise of revisional powers it would require
very exceptional circumstances to warrant
interference under Article 227 of the
Constitution of India since the power of
superintendence was not meant to circumvent
statutory law. It is settled law that the
jurisdiction under Article 227 could not be
exercised ‘as the cloak of an appeal in disguise’ .
(emphasis supplied)”
31. Applying the settled law to the facts of this case, I am of the view that the
trial Court has passed a reasoned order, keeping in view the law and facts
of the present case. The trial Court has further stated detailed reasons in
paragraphs 35 of the judgment, which have been reproduced in the paras
aforegoing why trial in the case would be necessary.
32. I see no reason to take a different view in the matter. Moreso, as this is a
family matter and cannot be equated with the commercial matter. In
family matters, the Court must tread carefully and leave no room for
doubt as in the present case, and if it is held that a valid marriage
subsisted when the respondent married the petitioner, it would have far
reaching consequences, hence, it would be appropriate that the matter is
decided by a competent Court after recording evidence rather than in an
CM(M) 684/2010 Page 24 of 29
application under Order 12 Rule 6 CPC. Similar view has been expressed
by the Apex Court in a recent decision rendered in Deoki Panjhiyara Vs.
Shashi Bhushan Narayan Azad & Anr decided on 12.12.2012 in
somewhat different facts, the wife had filed an SLP challenging the order
of the High Court. In the said case, the appellant was married to the
respondent in the year 2006. She filed a petition under Section 12 of the
Protection of Women from Domestic Violence Act, 2006, seeking certain
reliefs including the maintenance, wherein interim maintenance was
granted which was affirmed by the Sessions Judge, against which the
husband filed a writ petition before the High Court, seeking recall of the
order on the ground that he came to know subsequently that his marriage
with the appellant was void on the ground that at the time of said marriage
the appellant was married to one Rohit Kumar Mishra. The certificate of
marriage between the appellant the Rohit Kumar Mishra was placed on
record. The writ petition filed by the husband, was allowed, however, the
Supreme Court set aside the order of the High Court. Relevant
paragraphs of the judgment read as under:
“14. Admittedly, both the appellant and the respondent are
governed by the provisions of the Hindu Marriage Act,
1955. Section 11 of the Hindu Marriage Act makes it
clear that a marriage solemnized after the commencement of
the Act “shall be null and void and may, on a petition
presented by either party thereto against the other party, be
so declared by a decree of nullity if it contravenes any one
of the conditions so specified in clauses (i), (iv) and (v) of
Section 5.
15. While considering the provisions of Section 11 of the
Hindu Marriage Act, 1955 this Court in Yamunabai v.
Anantrao air 1988 SC 645 has taken the view that a marriage
covered by Section 11 is void-ipso-jure, that is, void from
the very inception. Such a marriage has to be ignored as not
existing in law at all. It was further held by this Court that a
CM(M) 684/2010 Page 25 of 29
formal declaration of the nullity of such a marriage is not a
mandatory requirement though such an option is available to
either of the parties to a marriage.
It must, however, be noticed that in Yamunabai (supra) there
was no dispute between the parties either as regards the
existence or the validity of the first marriage on the basis of
which the second marriage was held to be ipso jure void.
16. A similar view has been expressed by this Court in a
later decision in M.M. Malhotra v. Union of India 2005 (8)
SCC 351 wherein the view expressed in Yamunabai (supra)
was also noticed and reiterated.
17. However, the facts in which the decision in M.M.
Malhotra (supra) was rendered would require to be noticed in
some detail:
The appellant M.M. Malhotra was, inter alia, charged
in a departmental proceeding for contracting a plural
marriage. In reply to the charge sheet issued it was pointed
out that the allegation of plural marriage was not at all
tenable inasmuch as in a suit filed by the appellant (M.M.
Malhotra) for a declaration that the respondent (wife) was not
his wife on account of her previous marriage to one D.J.
Basu the said fact i.e. previous marriage was admitted by the
wife leading to a declaration of the invalidity of the marriage
between the parties. The opinion of this court in M.M.
Malhotra (supra) was, therefore, once again rendered in the
situation where there was no dispute with regard to the
factum of the earlier marriage of one of the spouses.
18. In the present case, however, the appellant in her
pleadings had clearly, categorically and consistently denied
that she was married to any person known as Rohit Kumar
Mishra. The legitimacy, authenticity and genuineness of the
marriage certificate dated 18.4.2003 has also been questioned
by the appellant. Though Section 11 of the aforesaid Act
gives an option to either of the parties to a void marriage to
seek a declaration of invalidity/nullity of such marriage, the
exercise of such option cannot be understood to be in all
situations voluntarily. Situations may arise when recourse to
CM(M) 684/2010 Page 26 of 29
a court for a declaration regarding the nullity of a marriage
claimed by one of the spouses to be a void marriage, will
have to be insisted upon in departure to the normal rule.
This, in our view, is the correct ratio of the decision of this
Court in Yamunabai (supra) and M.M. Malhotra (supra). In
this regard, we may take note of a recent decision rendered
by this Court in A. Subash Babu v. State of Andhra
Pradesh & Anr., 2011 (7) SCC 616, while dealing with the
question whether the wife of a second marriage contracted
during the validity of the first marriage of the husband would
be a “person aggrieved” under Section 198 (1)(c) of the
Code of Criminal Procedure to maintain a complaint
alleging commission of offences under section 494 and 495
IPC by the husband. The passage extracted below effectively
illuminates the issue:
“Though the law specifically does not cast obligation
on either party to seek declaration of nullity of
marriage and it may be open to the parties even
without recourse to the Court to treat the marriage as a
nullity, such a course is neither prudent nor
intended and a declaration in terms of Section 11 of
the Hindu Marriage Act will have to be asked for, for
the purpose of precaution and/or record. Therefore,
until the declaration contemplated by Section 11 of
the Hindu Marriage Act is made by a competent Court,
the woman with whom second marriage is
solemnized continues to be the wife within the
meaning of Section 494 IPC and would be entitled
to maintain a complaint against her husband.”
19. In the present case, if according to the respondent, the
marriage between him and the appellant was void on account
of the previous marriage between the appellant and Rohit
Kumar Mishra the respondent ought to have obtained the
necessary declaration from the competent court in view of
the highly contentious questions raised by the appellant
on the aforesaid score. It is only upon a declaration of
CM(M) 684/2010 Page 27 of 29
nullity or annulment of the marriage between the parties
by a competent court that any consideration of the question
whether the parties had lived in a “relationship in the nature
of marriage” would be justified. In the absence of any
valid decree of nullity or the necessary declaration the court
will have to proceed on the footing that the relationship
between the parties is one of marriage and not in the nature
of marriage. We would also like to emphasise that any
determination of the validity of the marriage between the
parties could have been made only by a competent court in
an appropriate proceeding by and between the parties and
in compliance with all other requirements of law. Mere
production of a marriage certificate issued under Section 13
of the Special Marriage Act, 1954 in support of the claimed
first marriage of the appellant with Rohit Kumar Mishra was
not sufficient for any of the courts, including the High
Court, to render a complete and effective decision with
regard to the marital status of the parties and that too in a
collateral proceeding for maintenance. Consequently, we
hold that in the present case until the invalidation of the
marriage between the appellant and the respondent is made
by a competent court it would only be correct to proceed on
the basis that the appellant continues to be the wife of the
respondent so as to entitle her to claim all benefits and
protection available under the DV Act, 2005.
20. Our above conclusion would render consideration of
any of the other issues raised wholly unnecessary and
academic. Such an exercise must surely be avoided.”
33. In this matter highly contentious issues have been raised by the parties
which can best be decided on evidence.
34. In view of above, no grounds are made out to interfere in the judgment
passed by learned trial court on 10.03.2010. The present petition and the
application are accordingly, dismissed.
CM(M) 684/2010 Page 28 of 29
35. At this stage, counsel for the petitioner submits that a direction should be
issued to the trial court for day-to-day hearing in the matter. The order-
sheets have been perused, which have been produced in court, which
shows that the trial court has already been giving short dates in the matter
and both the counsel are pursuing the matter without any unnecessary
adjournment. However, having regard to the age of the petitioner, the
trial court is directed to dispose of the matter, expeditiously.
G.S.SISTANI, J
JANUARY 17, 2013
ssn
CM(M) 684/2010 Page 29 of 29