Case Note & Summary
The petitioner wife filed a petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of cruelty. The respondent husband filed a written statement with a counterclaim for divorce on the same ground but based on separate facts. On 20th May, 2009, the Family Court Judge passed an order directing that the court shall follow Order XII Rule 6 of the Code of Civil Procedure, 1908 and pass a decree for divorce in favor of both parties. The petitioner wife then applied to the Principal Judge of the Family Court for transfer of the petition to another court, citing the observations in the order. The Principal Judge rejected the transfer application on 24th July, 2009 on the ground that he had no authority to transfer a petition. The petitioner filed two writ petitions: one challenging the order dated 20th May, 2009 (Writ Petition No. 7977 of 2009) and another challenging the order dated 24th July, 2009 (Writ Petition No. 7931 of 2009). The High Court held that Order XII Rule 6 CPC applies only when there is a clear and unequivocal admission of the same cause of action. Since the parties sought divorce on distinct grounds of cruelty based on separate facts, there was no admission. The Family Court's order was without jurisdiction and set aside. Regarding the transfer application, the High Court held that the Principal Judge does have authority to transfer petitions under the Family Courts Act, 1984, and directed the Principal Judge to consider the application afresh on merits. The court also noted that an attempt at settlement had failed.
Headnote
A) Civil Procedure - Order XII Rule 6 CPC - Judgment on Admission - The Family Court cannot pass a decree for divorce under Order XII Rule 6 CPC when the parties have sought divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955 based on separate and distinct sets of facts, as there is no clear and unequivocal admission of the same cause of action. The court held that the order dated 20th May, 2009 was without jurisdiction and liable to be set aside (Paras 3-5).
B) Family Law - Transfer of Petition - Jurisdiction of Principal Judge - The Principal Judge of the Family Court has the authority to transfer a petition from one court to another under the Family Courts Act, 1984. The rejection of the transfer application solely on the ground that the Principal Judge has no authority was erroneous. The court directed the Principal Judge to consider the transfer application afresh on merits (Paras 6-7).
Issue of Consideration
Whether Order XII Rule 6 of the Code of Civil Procedure, 1908 can be invoked to pass a decree for divorce on admission when the petitioner and respondent have sought divorce on the ground of cruelty based on separate and distinct sets of facts.
Final Decision
The High Court allowed both writ petitions. The order dated 20th May, 2009 passed by the Family Court was set aside. The order dated 24th July, 2009 rejecting the transfer application was also set aside, and the Principal Judge of the Family Court was directed to consider the transfer application afresh on merits and in accordance with law.
Law Points
- Order XII Rule 6 CPC applies only when there is a clear and unequivocal admission of the same cause of action
- not when parties seek divorce on distinct grounds of cruelty
- Section 13(1)(ia) Hindu Marriage Act
- 1955
- counterclaim on different facts does not constitute admission
- Family Court cannot suo motu invoke Order XII Rule 6 CPC without application
- transfer application cannot be rejected on ground of lack of authority without considering merits
Case Details
2010 LawText (BOM) (04) 104
Writ Petition No. 7931 of 2009 and Writ Petition No. 7977 of 2009
Ms Tanmayi Gadre h/f Shri N.P. Deshpande for the Petitioner, Shri Vivek Salunke for the Respondent no.1
Mrs. Pranjali Prasanna Bingi
Mr. Prasanna Anantrao Bingi & Anr.
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Nature of Litigation
Writ petitions challenging Family Court orders in a matrimonial divorce proceeding.
Remedy Sought
The petitioner wife sought to set aside the Family Court order dated 20th May, 2009 directing a decree on admission under Order XII Rule 6 CPC, and to set aside the order dated 24th July, 2009 rejecting her application for transfer of the petition.
Filing Reason
The Family Court Judge passed an order to follow Order XII Rule 6 CPC and pass a decree for divorce in favor of both parties, despite the parties having sought divorce on distinct grounds of cruelty based on separate facts. The Principal Judge rejected the transfer application on the ground of lack of authority.
Previous Decisions
The Family Court passed an order on 20th May, 2009 directing that the court shall follow Order XII Rule 6 CPC and pass a decree for divorce in favor of both parties. The Principal Judge rejected the transfer application on 24th July, 2009 on the ground that he had no authority to transfer a petition.
Issues
Whether Order XII Rule 6 of the Code of Civil Procedure, 1908 can be invoked to pass a decree for divorce on admission when the parties have sought divorce on the ground of cruelty based on separate and distinct sets of facts.
Whether the Principal Judge of the Family Court has the authority to transfer a petition from one court to another.
Submissions/Arguments
The petitioner argued that Order XII Rule 6 CPC has no application because the parties sought divorce on cruelty based on separate sets of facts, and there was no clear admission of the same cause of action.
The petitioner argued that the Principal Judge has authority to transfer petitions under the Family Courts Act, 1984.
Ratio Decidendi
Order XII Rule 6 of the Code of Civil Procedure, 1908 applies only when there is a clear and unequivocal admission of the same cause of action. In a divorce petition where both parties seek divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955 but on separate and distinct sets of facts, there is no admission of the other party's case. Therefore, the Family Court cannot suo motu invoke Order XII Rule 6 CPC to pass a decree on admission. The Principal Judge of the Family Court has the authority to transfer petitions under the Family Courts Act, 1984, and the rejection of the transfer application on the ground of lack of authority was erroneous.
Judgment Excerpts
The learned counsel appearing for the Petitioner submitted that in view of the fact that the Petitioner and the Respondent had sought divorce on the ground of cruelty on separate set of facts, Rule 6 of Order XII of the Code of Civil Procedure, 1908 has no application.
The order dated 20th May, 2009 passed by the Family Court is without jurisdiction and is liable to be set aside.
The Principal Judge of the Family Court has the authority to transfer a petition from one court to another. The rejection of the transfer application on the ground that the Principal Judge has no authority is erroneous.
Procedural History
The petitioner wife filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 in the Family Court. The respondent husband filed a written statement with a counterclaim for divorce. On 20th May, 2009, the Family Court Judge passed an order directing that the court shall follow Order XII Rule 6 CPC and pass a decree for divorce in favor of both parties. The petitioner then applied to the Principal Judge of the Family Court for transfer of the petition, which was rejected on 24th July, 2009 on the ground that the Principal Judge had no authority. The petitioner filed two writ petitions in the Bombay High Court challenging both orders.
Acts & Sections
- Hindu Marriage Act, 1955: Section 13(1)(ia), Section 13(1A)(ii)
- Code of Civil Procedure, 1908: Order XII Rule 6
- Family Courts Act, 1984:
