Kailash Kumari vs Manmohan Kapoor

(1) This revision is directed against the order dated March 23, 1974 of the learned District Judge, Jammu, whereby he framed issue No. 3 in the

following form and placed the burden of proof of the issue on the petitioner herein;

whether the petitioner in asking for relief of divorce is taking advantage of his own wrong.?

(2) It appears that an exparte decree for restitution of conjugal rights was obtained by the respondent herein from the court of District Judge.

Jammu, on Nov: 3, 1971. An application for execution of that decree was filed by the respondent but the same was dismissed for default on May

1973. On December 13, 1973 the respondent filed an application under section 13 of the Hindu Marriage Act hereinafter referred to as 'the

Act1) out of which the present revision has arisen in the court of the District Judge, Jammu, praying that since the petitioner herein had not

complied with the aforesaid decree for restitution of conjugal rights passed in his favour and there had been no resumption as between the parties

for a period on more than two years since the passing of the said decree a decree for divorce dissolving the marriage be passed in his favour. This

application was resisted by the petitioner herein on number of grounds. On March 20, 1972 the court proceeded to frame the issues Aggrieved by

the form of issue No. 3 and the burden of proof, the petitioner wife has as already stated, approached this court in revision.

(3) Appearing in support of the revision Mr. Sethi has vehemently contended that the learned District Judge has grossly erred and exceeded his

jurisdiction in framing issue No. 3 in the form reproduced above, and in placing the burden of proof thereof on his client. He has further urged that

in view of the phraseology of Sec. 23 of the Act which controls all proceeding under the Act, the learned District Judge could not frame the

aforesaid issue in the form in which he has done. He has in support of his contentions drawn our attention to the rulings reported as AIR 1968

Punjab & Haryana 287, and 439, AIR 1968 Bombay 332 and AIR 1971 All. 201 at 203.

(4) Mr. Inderjeet Gupta appearing on behalf of the respondent has on the other hand contended that the revision application is not competent as it

is directed against an interlocutory order and does not fulfil the requirements of Sec. 115 of the Code of Civil Procedure. According to Mr.

Inderjeet Gupta the matter can be agitated in an appeal and from the ultimate decree that may be passed in the case and for a revision to be

maintainable it is necessary that the case should be a decided one. Mr. Inderjeet Gupta has next urged that it is for the petitioner wife to establish

to the satisfaction of the court by leading cogent evidence that the other spouse in asking for the relief of divorce is not taking advantage of his own

wrong and that the wording of Sec 23 of the Act has nothing to do with the placing of the burden of proof of the issue.

(5) We have given our careful consideration to the submissions of the learned counsel for the parties.

(6) Although Mr, Inderjeet Gupta has referred to certain rulings and has tried to persuade us to come to the conclusion that the present case does

not fulfil the essential requirement of Sec. 115 of the Code of Civil Procedure so far as the word 'case' occurring therein is concerned, we regret

we cannot accede to his contention.

(7) In our opinion the phraseology of Sec. 115 of the Code of Civil Procedure is wide enough to cover also a part of the proceedings, as held by

one of us in S. Hishan Singh Vs. Murti Shivjee, AIR 1969 J&K 50. It will also be advantageous in this connection to refer to a Full Bench decision

of the Lahore High Court in Bibi Gurdevi represented by Prithviraj Khosla Vs. Chaudhri Mohammad Baksh and others, AIR 1943 Lah. 65 where

it was held as follows :

The word 'case' in Sec. 115 does not always mean the whole suit. It is of a very wide import, and means any state of facts juridically considered.

This meaning is wide enough to include a decision on any substantial question in controversy between the parties affecting their rights even though

such order is passed in the course of the trial of the suit. An interlocutory order deciding a question of this kind as distinguished from purely formal

and incidental order is a 'case' decided within the meaning of Sec. 115 but it will be open to revision only if the other conditions expressly laid

down in Sec. 115 are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remanded

otherwise than by the exercise of the extraordinary jurisdiction of the High Court at that stage.

(8) In S. Srinivasa Row Vs Kaliaparumal (minor) by father and maternal guardian Veer an and another AIR 1966 Mad. 321 it was held that the

issue relating to res judicata involves question of jurisdiction and therefore comes within ambit of the word 'case'. The view expressed by Rajasthan

High Court in Puroh it Swarupharian Vs. Gopinath and another AIR 1953 Raj. 137 that where it is open to a pary to raise a ground of appeal u/s

105 of the Civil Pr: Code from the final decree or order with respect to any order which has been passed during the pendency of the case, no

revision would be competent, was overruled by their Lordships of the Supreme Court S. S. Khanna Vs. F. J Dillan, AIR 1964 SC 497 where

their Lordships observed that once it is granted that the expression 'case' includes a part of the case there is no escape from the conclusion that the

revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order

passed in the suit. Any other view in their Lordships opinion would impute to the legislature an intention to restrict the exercise of this salutary

jurisdiction to those comparatively unimportant suits and proceeding in which the appellate jurisdiction of the High Court is excluded for the

reasons of Public policy.

(9) Keeping in view the ratio of the above mentioned decisions, we are of the opinion that the present application for revision is maintainable.

Accordingly we overrule the first contention raised by Mr. Inderjeet Gupta.

(10) The second contention of Mr. Inderjeet Gupta is also devoid of substance. A plain reading of Sec. 23 of the Act would show that the

provisions of the section are mandatory and noncompliance therewith deprives the court of its jurisdiction to grant a decree for a dissolution of

marriage. The language of the section according to which strict proof of the cumulative conditions mentioned therein is necessary unmistakably

suggests that it is for the party who seeks relief of divorce from the court to prove that he or she is not taking advantage of his or her own wrong or

disability. In the present case the fact that the court has to be satisfied before passing a decree that the respondent herein is not taking advantage of

his own wrong shows that the burden of proof of the issue has to be upon him and cannot be placed upon the petitionerwife. Any other view of the

matter would clearly run counter to the clear and unambiguous language of Section 23 of the Act.

(11) For the foregoing reasons we are of the view that the learned District Judge was wrong in framing the issue in the form in which he did.

Accordingly we allow the revision. In the result issue No. 3 would stand modified and cast in the following form :

Whether the petitionerhusband in asking for divorce is not taking advantage of his own wrong or disability ? O. P. P.

(12) The parties are directed to appear before the learned District Judge, Jammu, on May 7, 1975 to enable him to proceed with the

crossexamination of the respondent herein.