PARTIAL QUASHING OF F.I.R BASED ON SETTLEMENT : PERMISSIBILITY ?

 

PARTIAL QUASHING OF F.I.R based on settlement: permissibility ?

In apt cases, even F.I.R u/s 307 of IPC could be quashed.

The quashing of F.I.R based on settlement are the most common mode of seeking its quashing, particularly, in respect of matrimonial cases and / or also in commercial transactions and money disputes having a predominantly civil profile. Whether all the F.I.R, based on settlement, could be quashed has no longer been  a res integra. The high court u/s 482 of Cr.PC (Now, under section 528 of Bhartiya Nyaya Suraksha Sanhita (BNSS) 2023) is empowered to quash F.I.R and/or proceeding in order to secure the ends of justice, even qua non compoundable offences. However, it is now settled that F.I.R relating to heinous crimes such as attempt to murder, rape, dacoity etc cannot be quashed, even after settlement between the parties. 

The burning issues hovering over the years, though, has been, as regards the permissibility of partial quashing of F.I.R against some accused only or in respect of some of the offences only. Whether, partial quashing against an accused is permitted or not, based on the settlement, while continuing with proceedings against other accused? There are conflicting views in this regard and whereas, several high courts has held that partial quashing of F.I.R could be permitted, still, some other high courts has held that it cannot be permitted. The matter is now pending before the hon’ble Supreme Court for a final view in this regard. Gainfully, though, the Supreme Court in the past and the high courts in apt cases have allowed partial quashing of F.I.R based on settlement. In fact, even F.I.R u/s 307 of IPC has been quashed, though, that is a rarity. Some of the judicial precedents shall be worthy of reference:

1.     Anil Bhimrao Sapate & Ors The State of Maharashtra & Ors Crl Writ Petition No. 4530/2-0025

2.     State of Madhya Pradesh Vs. Kalyan Singh & Ors. In Criminal Appeal No. 14 of 2019 [arising out of SLP (Crl.) No. 5632 of 2014], dated 4th January 2019,

3.     Naushey Ali and Ors. Vs. State of Uttar Pradesh & Anr. (2025) 4 SCC 78,

4.     Gian Singh vs. State of Punjab, (2012) 10 SCC 303,

5.     Narinder Singh and Ors. Vs. State of Punjab and Anr. (2014) 6 SCC 466.

In Anil Bhimrao Sapate & Ors The State of Maharashtra & Ors Crl Writ Petition No. 4530/2-0025, The High Court of Bombay (Circuit Bench, Kolhapur) had occasion to deal with the aspect and for the offence punishable under Section 307 of the IPC, which is serious in nature. It was contended by the prosecution that the quashing of such a serious offence cannot be permitted. Reliance was placed on the decision of the Hon’ble Supreme Court in State of Madhya Pradesh Vs. Kalyan Singh & Ors in Criminal Appeal No. 14 of 2019 [arising out of SLP (Crl.) No. 5632 of 2014]. The accused therein were facing criminal proceedings for the offence punishable under Section 307 r/w Section 34 of the IPC. It was then held that offences under these sections are not compoundable offences, and looking at the serious allegations against the accused, the proceedings were not quashed. To buttress the contentions further, it was stated that, merely, because the parties have settled their dispute, the criminal proceedings cannot be quashed as the nature of the offence is serious.

In Anil Bhimrao Sapate (Supra) it is held that :

11. We are conscious of the fact that powers under Section 482 of the Cr. P.C corresponding to Section 528 of the BNSS are to be exercised very sparingly. Formation of opinion by this Court, before it exercises inherent powers under Section 482 of the Cr.P.C. on either of the twin objectives, (i) to prevent abuse of the process of any Court, or (ii) to secure the ends of justice, is a sine qua non.

The principles laid down in Gian Singh Vs. State of Punjab (2012) 10 SCC 303 have been reiterated in Narinder Singh & Ors. (Supra).

12. In the present case, we find that the village elders intervened in the matter and parties have not only buried the dispute but have also decided to live peacefully. In view of the compromise, there is minimal chance of witnesses coming forward in support of the prosecution case. It would become difficult to prove as to who caused injuries and hence, chances of conviction appears to be less. Further, the parties are related to each other and as submitted by learned counsel, the boundary dispute has now been resolved with the parties maintaining cordial relations with each other. Also, considering the medical certificate on record, the allegations and the nature of injuries, it is doubtful whether this is a case which would satisfy the ingredients of Section 307 of the IPC.

The high court therefore was pleased to hold that a case is made out to quash and set aside the criminal proceedings and that the petition deserves to be allowed and is accordingly allowed subject to payment of costs of Rs.50,000/- by the petitioners as well as respondent nos. 2 and 3. The costs to be paid to Chairman Police Welfare Fund and to Baqr Librray.

In Narinder Singh (Supra), the Supreme Court has prescribed the guidelines:

"26. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well."     

The Hon’ble Supreme Court in Narinder Singh (Supra) has laid down the guidelines observing that only because FIR / Charge-sheet incorporates provisions of Section 307 of the IPC could not by itself, constitute a ground to reject the petition under Section 482 of the Cr.P.C. and refuse to accept the settlement between the parties. The quashment of the proceedings depends on the facts and circumstances of each case. In paragraph 29, Their Lordships have laid down detailed guidelines to be followed before framing a view under what circumstances this Court should accept the settlement between the parties and quash the proceedings, and when we should refrain from doing so. Paragraph 29 is important, which reads thus :-

“29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

29.2 When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

29.3 Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

29.4. On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone.

The observations of Sikri, J. in Narinder Singh (supra) is worth noting:-

"26. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well."

However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc.

Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.”

The Hon’ble Supreme Court in Naushey Ali and Ors. Vs. State of Uttar Pradesh & Anr. (2025) 4 SCC 78 had significantly observed as under:

18. As would be additionally clear from a close reading of the above two paragraphs in Gian Singh vs. State of Punjab, (2012) 10 SCC 303, even though compounding and quashing are conceptually different, this Court was careful in pointing out that merely because there is a settlement, for certain categories of offences proceedings will not be quashed. This is on the premise that crimes that have harmful effect on the public and consist of wrongdoing that seriously endangers and threatens the well-being of the society cannot be quashed, only because the accused and the victim have amicably settled the matter.

19. Coming to the facts, notwithstanding the fact that the High Court has mixed up the concepts of compounding and powers of quashment, still the case needs to be considered from the point of view of Section 482.

What therefore emerges from the above dicta of the Supreme Court, is that the proceedings, should not be quashed solely on the ground that original complainant and the accused have settled their disputes, if the allegations are of serious in nature such as under Section 307 r/w Section 34 of the IPC.

In Kalyan Singh & Ors. (Supra), it was noted that looking at the serious allegations against the accused u/s 307 and 294 of IPC, the High Court committed a grave error in quashing the criminal proceedings solely on the ground that the original complainant and the accused have settled the dispute.

In Anil Bhimrao Sapate  (Supra) , it was held that the facts are distinguishable.

The Medico Legal Certificate of the injured witness reveals that he has suffered simple injuries on the right shin and left shin. So far as other respondent is concerned, two of the injuries, simple in nature are on the parietal head and parieto-occipital portion. There is one injury on the left knee, the nature of which is stated to be blunt.  The x-ray of the left knee reveals that there was fracture of the upper shaft tibula of left side.

 

PARTIAL QUASHING OF F.I.R: Permissibility

What bears emphasis is that the FIR was registered against various accused persons. The partial quashing of the FIR is permissible in accordance with Lovely Salhotra Vs State (NCT of Delhi), (2018) 12 SCC 391 it is held therein by the hon’ble Supreme Court:

"3. We have taken into account the facts of the matter in question as it appears to us that no cognizable offence is made out against the appellants herein. The High Court was wrong in holding that the FIR cannot be quashed in part and it ought to have appreciated the fact that the appellants herein cannot be allowed to suffer on the basis of the complaint filed by Respondent 2 herein only on the ground that the investigation against co-accused is still pending. It is pertinent to note that the learned Magistrate has opined that no offence is made out against Co-accused 2, 3, 4 and 6 prima facie. According to us, the FIR in question filed against the appellants herein by Respondent 2 is only an afterthought with the sole intention to pressurise the appellants not to prosecute their criminal complaint filed by them under Section 138 of the Negotiable Instruments Act, 1881”.

Accordingly, the order of High Court, declining to quash the F.I.R owing to partial quashing plea, was set aside by the hon’ble Supreme Court and F.I.R was quashed qua the appellant.

The Delhi High Court has also observed in CRL. M.C. 1741/2021, titled Sunil Tomar Vs The State of NCT of Delhi & Anr  

"Partial quashing or part quashing of FIR only qua the petitioner/ accused with whom the complainant has compromised or settled the matter can be allowed and while quashing, it must be appreciated that the petitioner/accused cannot be allowed to suffer based on a complaint filed by the respondent, when subsequently, all disputes have been settled between the parties."

In TAMANNA BATRA & ANR  WP ( Crl) 2247/2021 in a matter captioned as TAMANNA BATRA & ANR Vs  STATE & ANR , the Delhi High Court in WP ( Crl) 2247/2021 was pleased to quash FIR No. 60/2017 dated 30.01.2017, under sections 420/467/468/471/120 B /34/174-A IPC, registered at Police Station-Begampur, New Delhi and proceedings emanating therefrom. The FIR was registered under aforesaid sections and as per the FIR, the petitioners had fraudulently obtained loans from the complainant bank by mortgaging properties which did not belong to the petitioners. However, during the pendency of the proceedings, the petitioners have settled their disputes with the complainant/respondent No.2, A compromise deed dated 11.06.2018 between the complainant and the petitioners was arrived at and placed on record. The AR of the complainant remained present in Court through video conferencing and was identified by his counsel. The petitioner was also present in the court and duly identified by the counsel.  

Both the parties had stated that they have entered into the out of their own free will, volition and without any threat, force, undue influence or coercion. It is stated by respondent No.2 that he has no objection if the FIR is quashed qua the petitioners only and accordingly F.I.R was quashed, subject to the following:

“13. However, I am of the view that considerable time of the police and judicial time has been wasted as the FIR is of the year 2017 and charge- sheet has been filed. The police machinery has been put in motion on account of the acts of commission & omission on behalf of the parties and useful time of the police which could have been utilised for important matters has been misdirected towards this case. Hence, the petitioners must pay costs.

14. For the reasons stated above, FIR No. 60/2017 dated 30.01.2017, under Sections 420/467/468/471/120-B/34/ 174-A IPC, registered at Police Station-Begampur, New Delhi is hereby quashed against the petitioners only subject to payment of a cost of Rs. 10,000/- by each petitioner to the DHCLSC within a period of four weeks from today. The proof of payment of cost shall be filed in the Registry within 4 weeks and in case the same is not furnished, this file be put up before the Court”.

Yet again, the Delhi High Court in CHANDER PRAKASH & ANR Vs THE STATE & ORS CRL.M.C. 2806/2023 seeking quashing of FIR No. 0374/2021 dated 03.08.2021, under Sections 323/354/354-B/506/509/34 IPC had occasion to deal with the partial quashing of F.I.R. To put the facts in perspective, as per the FIR, it is stated that the brother of the complainant along with his friends had misbehaved and outraged the modesty of the complainant and also had a fight with her sister's to be in-laws. However, during the pendency of the proceedings, the parties have arrived at a settlement dated 21.03.2023, pursuant to which the dispute has been settled between the parties and the respondent No.3 has agreed to cooperate in quashing of the FIR. Both the parties had stated that they have entered into the aforesaid settlement out of their own free will, volition and without any threat, force, undue influence or coercion. It is stated by the complainant that she has no objection if the FIR is quashed against the petitioners.

Though one accused had absconded and was not a party to the petition. The F.I.R was quashed, taking note of the mandate of Lovely Salhotra (Supra) and Sunil Tomar (Supra), of course, while imposing costs, since the wherewithal and machinery were invoked and considerable time and resources were put in.

That the underlying object of the high court while allowing partial quashing of F.I.R based on settlement that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice and  to put a quietus to the matter. No fruitful purpose shall be served, if criminal proceedings are permitted to be prosecuted any further qua the petitioners only. In apt cases, though, not as a norm F.IR u/s 307 of Cr.PC could also be quashed for securing peace and harmony, if both the parties accord their consent and if it is found plausible by the high court in the interest of justice and with a view to secure the ends of justice.

                                -------

                        Anil K Khaware

                        Founder & Senior Associate

Societylawandjustice.com

 

 

SUPREME COURT ON UNFETTERD COPARCENARY RIGHTS OF DAUGHTERS

 

SUPREME COURT ON UNFETTERED COPARCENARY RIGHTS OF WOMEN

The daughter has equal rights on the ancestral property

The Hindu Succession (Amendment) Act 2005 and its applicability analysed

Prior to enactment of The Hindu Succession ( Amendment) Act 2005, a daughter had no rights in the ancestral property of the family and only limited rights were available to a daughter in terms of The Hindu Succession Act 1956. The journey of equal treatment, has now run a full circle in as much as in terms of The Hindu Succession  (Amendment) Act 2005 , the daughter is treated as coparcener, like her brothers and equal rights and entitlement was bestowed on her in the estate of her father. However, the right was not unfettered, in as much if, the father of the daughter, had breathed his last, prior to the enactment of The Hindu Succession ( Amendment) Act 2005, then, such daughters could not have claimed the rights in the ancestral properties. That anomaly is set at rest by the hon’ble Supreme Court with authoritative pronouncement of judgment reported as Vineeta Sharma Vs Rakesh Sharma AIR 2020 Supreme Court 3717. The analysis of the judgment needed to be pondered over in the prelude to the judgment, shall be worthwhile.

The legislative history of section 6 throws light in understanding the provision before the Act of 1956 was enacted. Women were not having any interest in the coparcenary properties, and on the demise of a coparcener, the share of the deceased coparcener devolved on the surviving coparceners. Hindu Succession Act made inroads into the system. It provided that on the demise of a coparcener, his interest in the coparcenary properties would not devolve on other coparceners by survivorship, and the share of the deceased coparcener was to be ascertained by way of notional partition as on the date of death. To that limited extent, the women did not become a coparcener, but they could inherit the property.

The 174^th Report of Law Commission of India recommended the adoption of the Kerala Model, and the amendments were effected in Kerala, Andhra Pradesh, Karnataka, and in several States, giving coparcenary rights to the daughters.

The question concerning the interpretation of section 6 of the Hindu Succession Act, 1956  as amended by Hindu Succession (Amendment) Act, 2005 (in short, 'the Act of 2005') were referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of the Supreme Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343.

In the case of Lokmani & Ors. v. Mahadevamma & Ors., [S.L.P.(C) No.6840 of 2016], the High Court held that section 6, as amended by the Act of 2005, is deemed to be there, since, 17.6.1956 when the Act of 1956 came into force, the amended provisions are given retrospective effect, when the daughters were denied right in the coparcenary property, pending proceedings are to be decided in the light of the amended provisions. Inequality has been removed. The High Court held that the oral partition and unregistered partition deeds are excluded from the definition of 'partition' used in the Explanation to amended Section 6(5).

In Balchandra v. Smt. Poonam & Ors. [SLP [C] No.35994/2015], the question raised is about the retrospectivity of section 6 as substituted by Amendment Act, 2005 and in case the father who was a coparcener in the joint Hindu family, was not alive when the Act of  2005 came into force, whether daughter would become a coparcener of joint Hindu family property?

In the matter of Sistia Sarada Devi v. Uppaluri Hari Narayana & Ors. [SLP [C] No.38542/2016], the question raised is where the final decree has not been passed in a suit for partition, whether the redistribution of shares can be claimed by the daughters by amended section 6, as substituted?

In Girijavva v. Kumar Hanmantagouda & Ors. [SLP [C] No.6403/2019], the question raised is whether section 6, as substituted, is prospective as the father died in the year 1994 and, thus, no benefit could be drawn by the daughters.

In Indubai v. Yadavrao [SLP [C] No.24901/2019], a similar question has been raised. In B.K. Venkatesh v. B.K. Padmavathi [SLP [C] Nos. 176667/ 2020], the daughters have been accorded equal shares in Item No. 1 of Schedule A property, that has been questioned.

Another  Division Bench of the Supreme  Court in Prakash v. Phulavati (supra) held that section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act, 9.9.2005. The Supreme Court further opined that the provision contained in the Explanation to section 6(5) provides for the requirement of partition for substituted section 6 is to be a registered one or by a decree of a court, can have no application to a statutory notional partition, on the opening of succession as provided in the unamended Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of the deceased coparcener, which is not covered either under the proviso to section 6(1) or section 6(5), including its Explanation. The registration requirement is inapplicable to partition of property by operation of law, which has to be given full effect. The provisions of section 6 has been held to be prospective.

In Smt. V.L. Jayalakshmi v. V.L. Balakrishna & Ors. [SLP [C] No. 14353/2019], the petitioner sought partition of his father's ancestral properties, and suit was filed in 2001. The trial court granted 1/7^th share to all the parties. The same was modified. It was held that petitioner, and daughters were entitled to only 1/35^th share in the light of the decision of the Supreme Court in Prakash v. Phulavati (supra).

In Danamma (supra), the Supreme Court held that the amended provisions of section 6 confer full rights upon the daughter coparcener. Any coparcener, including a daughter, can claim a partition in the coparcenary property. Gurunalingappa died in the year 2001, leaving behind two daughters, two sons, and a widow. Coparcener's father was not alive when the substituted provision of section 6 came into force. The daughters, sons and the widow were given 1/5^th share apiece.

Acquisition of Rights in Coparcenary Property

According to Supreme Court while dealing with Vinetta Sharma (Supra) It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise. The argument raised that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. According to the Supreme Court such interpretation cannot be accepted, because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended section 6. The share of the surviving coparcener may undergo change till the actual partition is made. The proviso to section 6 does not come in the way of formation of a coparcenary, and who can be a coparcener. The proviso to section 6 as originally stood, contained an exception to the survivorship right. The right conferred under substituted section 6(1) is not by survivorship but by birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6, she has been made a coparcener. The precise declaration made in section 6 (1) has to be taken to its logical end; otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature. Survivorship as a mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from 9.9.2005 by section 6(3).

In effect, the suits/appeals pending before different High Courts and subordinate courts were delayed due to  legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section. It was therefore directed that the pending matters be decided, as far as possible, within six months. In view of this judgment, the Supreme Court has overruled  the contrary views expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is also partly overruled to the extent it is contrary to this decision.

The right to claim partition is a significant basic feature of the coparcenary, and a coparcener is one who can claim partition. The daughter has now become entitled to claim partition of coparcenary  w.e.f. 9.9.2005, which is a vital change brought about by the statute. A coparcener enjoys the right to seek severance of status. Under section 6(1) and 6(2), the rights of a daughter are pari passu with a son. In the eventuality of a partition, apart from sons and daughters, the wife of the coparcener is also entitled to an equal share. The right of the wife of a coparcener to claim her right in property is in no way taken away.

The decision in Hardeo Rai v. Sakuntala Devi & Ors., (2008) 7 SCC 46 lays down that when an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. After taking a definite share in the property, a coparcener becomes the owner of that share, and, as such, he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. It was observed:

“22. For the purpose of assigning one’s interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as “joint tenants” but as “tenants-in-common”. The decision of this Court in SBI, (1969) 2 SCC 33, therefore, is not applicable to the present case.

23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.”

                             PRELIMINARY DECREE AND FINAL DECREE: ANALYSIS

When  a suit for partition is preferred in courts of law, generally, a preliminary decree is followed by a final decree. The Preliminary decree ascertains the shares of the parties in the suit and as regards modalities of partition, demarcation of properties, sale or auction of the properties, if the properties are not capable of being divided by metes and bounds. The appointment of surveyor, Local Commissioner may also have to be appointed in view of fully and finally decide  the claim of partition.

To elucidate the aspect further, the Supreme Court has consistently held that a preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the Court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. The three-Judge Bench decision of the Supreme Court in Phoolchand & Anr. v. Gopal Lal, AIR 1967 SC 1470, it is Court stated as follows:

"We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. … So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; … there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. … for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. … a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree….."

As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition , that is, division by metes and bounds takes place by passing a final decree. An application requesting the Court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of the Limitation Act). It is only a reminder to the Court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion.

On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the Court. In fact, several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree.

The right to claim partition is a significant basic feature of the coparcenary, and a coparcener is one who can claim partition. The daughter has now become entitled to claim partition of coparcenary w.e.f. 9.9.2005, which is a vital change brought about by the statute. A coparcener enjoys the right to seek severance of status. Under section 6(1) and 6(2), the rights of a daughter are pari passu with a son. In the eventuality of a partition, apart from sons and daughters, the wife of the coparcener is also entitled to an equal share. The right of the wife of a coparcener to claim her right in property is in no way taken away.

What is interesting is  that for instance, if a suit for partition was filed in the year 2002 and during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788, held that the rights of daughters in coparcenary property as per the amended Section 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.

What emerges, therefore, is that It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise. To argue that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. We are unable to accept the submission because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended section 6. The share of the surviving coparcener may undergo change till the actual partition is made. The proviso to section 6 does not come in the way of formation of a coparcenary, and who can be a coparcener. The proviso to section 6 as originally stood, contained an exception to the survivorship right. The right conferred under substituted section 6(1) is not by survivorship but by birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6, she has been made a coparcener. The precise declaration made in section 6 (1) has to be taken to its logical end; otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature. Survivorship as a mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from 9.9.2005 by section 6(3).

The discussion , if taken further shall entail that the protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20.12.2004 is saved.  

A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous  transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.

 

Significantly, the Supreme Court has held in Vineeta Sharma (Supra) as under:

128. The expression used in Explanation to Section 6(5) ‘partition effected by a decree of a court’ would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not otherwise. A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with the special provisions of Section 6(5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation.

The Supreme Court had answered the reference as under:

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20^th day of December, 2004.

(iii)  Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

The Hindu Succession ( Amendment) Act 2005 is thus historic and the further judgments including the one under reference ( Ref: Vineeta Sharma) has settled what was ambiguous and hitherto unsettled. The finality has emerged and in a great deal it may appear that die is cast. The ambiguity has successively been mitigated and now, probably it is settled fully and finally. The coparcenary rights of daughters are established and that too by birth as has been the norm in case of males, hence, there is no distinction between males and females as regards the rights of females. The concept recognised is “once a daughter always a daughter”. The inherent antipathy or relegation of females rights are the nuances of the past and the rights of women have now been truly and really established in inheritance.

                                      -----

                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com     

                                           

INTERPLAY IN CASES OF DIVORCE UNDER HMA AND SMA 1954

 

INTERPLAY IN CASES OF Divorce UNDER HMA AND SMA 1954

The effect of Marriage solemnised under Hindu Marriage act, but registered under Special Marriage act 1954

An interesting point was raised before the Delhi High Court in a matter bearing no. MAT. Appeal No.32/2009 captioned as Suman Kundra Vs Sanjeev Kundra. The question arose for consideration before the Delhi High Court was as to whether the court can reject an application for dismissal of the divorce petition which has been filed under the Hindu Marriage Act on the ground of cruelty and desertion when admittedly the parties have contracted a marriage under the Special marriage Act and yet give a direction suo motu to the respondent to amend the petition. Whether such an amendment is permissible.

                        FACTUAL PERSPECTIVE

1.     The appeal was filed under Section 28 of the Hindu Marriage Act, read with Article 227 of the Constitution of India by the appellant against the order dated 16.3.2009, by virtue of which the application of the appellant for dismissal of the petition for divorce filed by the respondent herein under Section 13 (i) (a) of the Hindu Marriage Act was sought to be dismissed on the ground that the marriage between the parties had been contracted under the Special Marriage Act, therefore, the petition for divorce ought to have been filed under the Special Marriage Act.

2.     The respondent/petitioner had filed a petition against the appellant/wife for grant of divorce under Section 13 (i) (a) and i(b) of the Hindu Marriage Act (HMA) on the grounds of cruelty and desertion. It was not disputed that the parties were Hindu by religion and got married on 29.10.1986 as per Hindu rites and ceremonies. The marriage, though a love marriage could not continue for very long and the relationship soured as a consequence of which the marriage got dissolved by a decree of divorce on 2.6.1988.

3.     After the decree of divorce, the parties were drawn against each other once again and they decided to get re-married for second time. This time on 3.5.1990, the marriage was solemnized before a Marriage Officer, Tis Hazari Court, Delhi under the Special Marriage Act. The parties could not reconcile their inherent differences and the husband on 21.07.2005 filed a petition for divorce on the ground of cruelty and desertion under Section 13 (i)(a) and (b)  of the Hindu Marriage Act.

4.     The appellant contested the petition and filed her written statement on 8.9.2005. Issues were framed on 27.9.2008 and the case was set down for trial. The respondent/petitioner filed his affidavit of evidence on 28.11.2008 and 7.1.2009 and the case was adjourned to 11.2.2009.

5.     On 9.2.2009, the appellant/defendant filed an application under Section 151 CPC seeking dismissal of the petition on the ground that a false averment has been made in the petition with regard to the status of the respondent/petitioner and further that the divorce petition has been filed under HMA while as admittedly the marriage has taken place under Special Marriage Act. Therefore, the petition on the face of it was not maintainable.

Per contra the respondent/petitioner in his reply to the application had stated that the petition for divorce cannot be dismissed on account of the error which has crept in the petition with regard to the mentioning of the provision for grant of divorce, which admittedly was cruelty and the said ground of cruelty apart from being a ground under Section 13 (1)(a) of the HMA is also a ground for grant of divorce under Section 27 of the Special Marriage Act. It was also contended that the learned ADJ who is to try the divorce petition under the HMA is also to try the divorce petition under the Special Marriage Act and therefore, this being only a technical objection should not come in the way of processing and dealing with the petition on merits.

After hearing both the parties, the learned ADJ  was pleased to dismiss the application of the appellant. It was held that the court had jurisdiction to entertain the petition for divorce, both under the HMA as well as Special Marriage Act and the cruelty being a ground for divorce under both the Acts, therefore, the petition could continue, as there is a cause of action for the same. The learned Judge had distinguished the judgment relied upon by the appellant reported in Harshad Chiman Lal Modi Vs DLF Universal & Anr (2005) 7 SCC 791, as the appellant had contended that a forum which did not have the jurisdiction could not have entertained  the same. It was however observed that the aforesaid judgment related to territorial jurisdiction and not to subject-matter jurisdiction, which, admittedly, the ADJ had, in the instant case. In fact, reliance was placed on the judgment relied upon by the respondent (petitioner) relied on the judgments rendered by the Gauhati High Court and Calcutta High Court, reported as Anupam Das v.Smt. Mampi Das; AIR 2008 Gau (3) 2007 and Prabir Chandra Chatterjee  Vs Kaveri Huha Chaterjee ; AIR 1987 Calcutta 191, as it was contended that the court had the jurisdiction, because, the ground of cruelty was a ground for which a provision existed as a ground for divorce under both the enactments.

Aggrieved, the appellant preferred appeal before Delhi High Court.

                        DELHI HIGH COURT FINDING

The contentions of the appellant were as under:

(i) If the marriage is solemnized under the Special Marriage Act, then one cannot invoke the jurisdiction of the court exercising the powers under Hindu Marriage Act, since, the court will not have the jurisdiction over the subject-matter, unless and until it is not a family court, under the Family Court Act  Reliance was placed on Stephen Joshus & Anr. Vs. JS. Kapoor; (1995) 58 DLT 57; Mohan Raj vs. Violet Chandra; (1993) 1 ALL India HLR 108; and D. Jacintha Kamath Vs K Padmanabha Kamath  AIR 1992 Kant 372.

(ii) Non-raising of 'No objection as to inherent lack of jurisdiction' in the written statement will not create any bar against the appellant to raise this plea at any time of the proceedings. Reliance in this regard was placed on the following three judgments Sarwan Kumar Vs Madan Lal Aggarwal; (2003) 4 SCC 147; Hira Lal Patni Vs Kali Nath  ; (1962) 2 SCR 747; and Union of India Vs Baleshwar Singh; 1994 Supp. (2) SCC 587.

(iii) The divorce petition is liable to be dismissed as the same has been filed after suppressing material facts from the Hon'ble Court and reliance in this regard was placed on Satish Khosla Vs Eli Lilly Ranbaxy Ltd; 741 (1998) DLT 1; and A. Janaki Vs John Keneddy; MANU/TN/0394/2009.

 

In Stephen Joshus's case (supra), the question raised was whether a Christian married under the Christian Marriage Act could be granted divorce on the basis of mutual consent under Special Marriage Act. It is to be noted that Section 28 of the Christian Marriage Act does not create a bar on grant of divorce by mutual consent, hence, in that case, submissions was made, that since, under the Special Marriage Act, 1954 A mutual consent is a ground of divorce it is equally applicable to all the citizens of India irrespective of the fact that as to whether the marriage is solemnized under the same or other provisions of law. It was negated by the High Court, stating that the divorce can be granted only on the grounds which are available under a particular act, under which parties have got married, meaning thereby, that since parties were married under the Christian Marriage Act, and under the said Act there was no provision for grant of divorce by mutual consent and therefore their marriage could not be dissolved by mutual consent. Similar was the ratio of judgment in Mohan Raj's case (supra).

In D. Jacintha (Supra) the question that arose was- whether a Christian marriage where one of the parties is Hindu can be dissolved by a decree of divorce under Section 13 of Hindu Marriage Act at the instance of either of the parties. This contention was also negated by Karnataka High Court on the ground that for the purpose of dissolution of marriage under Hindu Marriage Act, the parties have to be necessarily Hindus and married according to Hindu rites and ceremonies, customary or ones which are prescribed under the said Act.

The Delhi High Court had thus held that none of the aforesaid three judgments, were applicable or helpful to the petitioner/appellant, because the ground on the basis of which the divorce is sought in the instant case is cruelty and/or desertion under the Hindu Marriage Act, which are also the grounds under the Special Marriage Act. Therefore, the question arose for consideration herein is whether a divorce petition under Section 13 of HMA filed by one of the parties, both being Hindu, but married under Special Marriage Act could be dismissed, merely, on the premise that the same ought to have been filed undersection 27 of Special Marriage Act.

The learned Trial Judge had rejected the application of the appellant/wife for dismissal of the divorce petition holding that such a petition for divorce was maintainable and the only mistake which had taken place was instead of mentioning the relevant provisions for grant of divorce under the Special Marriage Act, the provisions of the Hindu Marriage Cat were mentioned.

It is also contended on behalf of the appellant that under the Family Courts Act, it is the same Family Judge, who deals with the personal laws and the matrimonial laws of all the religions, but, before the constitution of the family courts, as the present case being an old case, the jurisdiction is vested with the District Judge and it is not necessary that the same District Judge may be assigned the task. Therefore, there will be lack of jurisdiction to entertain the petition by the District Judge which passed the impugned order.

However, Delhi High Court has repelled the contention as what involved in the present case was special jurisdiction and admittedly, it cannot be said to be inherent lack of jurisdiction to entertain a matter with regard to the special jurisdiction that a matter pertaining to personal law or a law pertaining to grant of divorce by the Trial Judge. The reason for this is that the Trial Judge under the Hindu Marriage Act as well as under the Special Marriage Act has to be the District Judge, and incidentally, in the instant case, it is the same Additional District Judge who is to decide the application for amendment both under the Special Marriage Act and the Hindu Marriage Act.

Therefore, it was held that as the same District Judge dealing with the divorce petition under the Hindu Marriage Act as well as the Special Marriage Act shall not lack the jurisdiction to entertain the application of the respondent. Moreover, objections with regard to the jurisdiction so far as the subject matter is concerned, ought to have been taken by the respondent at the earliest possible stage to avoid wastage of time and energy of both the litigants as well as of the court staff. In the instant case, the matter was filed in 2005 the evidence by way of affidavit has been filed in 2008 and the cross examination of the witness was yet to be completed. The matter has been pending now in courts for the last more than a decade and, therefore, to dismiss the divorce petition on the ground of lack of inherent jurisdiction, when the same is due to an inadvertent drafting error which can be corrected by an amendment simpliciter, would be to take a hyper technical view by this court when the thrust of the concern in matrimonial matters should be the question of grant/non grant of divorce and other ancillary reliefs to the parties. This is not, as if, the divorce under the Special Marriage Act and the divorce petition under HMA are dealt with by two different authorities. Both the powers are with the same District Judge. The contentions on behalf of the appellant was thus repelled for the simple reason as stated above, that in the instant case, it is the same District Judge, who was hearing the objections for grant of divorce, restitution of conjugal rights as well as grant of maintenance and other peripheral orders.

WRONG PROVISIONS & SUBSTANTIAL JUSTICE: BALANCE TO BE CREATED

As regard the submission that wrong mentioning of provision is different from invoking jurisdiction under a different statute. Reliance in this regard is placed on Jeet Mohinder Singh Vs Harminder Singh; (2004) 6 SCC 256, when the Supreme Court has dealt with the purpose of mentioning the correct provision for filing the application and it was held as under:

6. Though the nomenclature of an application is really not material and the substance is to be seen, yet it cannot be said that a party shall be permitted to indicate any provision and thereafter contend that the nomenclature should be ignored. Duty is cast on the parties to properly frame their applications and indicate the provisions of law applicable for making the application. Nomenclature may not be normally material. But, there is a purpose in indicating the nomenclature in a clear and precise manner. Though it is the substance and not the form which is material but as indicated above, that cannot be a reason to quote an inappropriate provision of law and then say "Don't look at the nomenclature". The care and caution which is required to be taken cannot be diluted to absurd limits. The care and caution required to be observed while making an application in the highest Court of the State are sadly missing in this case. Order XVIII Rule 17 deals with recall and examination of a witness and reads as follows:

"The Court may at any stage of a suit recall any witness who has been examined and may subject to the law of evidence for the time being in force put such questions to him as the Court thinks fit."

       

The Delhi High Court in Suman Kundra (Supra) has noted that in the aforesaid case, although the application for recalling and examination of a witness was filed, but wrong provision of law was mentioned. The Supreme Court, although impressed upon correct mentioning of the provisions of law for filing the application, but on merits of the matter as the application was filed under a wrong provision, the aggrieved party was permitted to file a fresh application under Order 18 Rule 17 which if it chose to do and the same was to be dealt with by the trial court meaning thereby that although the court impressed upon the mentioning of the correct provisions of law for the purpose of filing of an application or for that matter which would applicable to a petition also, but it did not oust the aggrieved party in the said case only on technicalities of not granting it an opportunity to rectify the deficiency by filing a fresh application under the relevant provision.

There is no quarrel with the proposition of law laid down in the said judgment that correct provision of law must be mentioned in the application or the petition, but at the same time in case a correct provision of law has not been mentioned, a party be that in an application or a petition, the said petitioner/applicant should not be made to suffer on account of these inadvertent technical errors which have cropped up. Further, much would depend of the case on the nature of the case, the stage of the case as well as the nature of mistake. In case, the case or an application is at the threshold perhaps court may dismiss the application or the petition for want of mentioning of correct provision or the party may itself like to withdraw the application or the petition with liberty to file afresh. But situation would be different in case, the case is at an advance stage or considerable time has already been spent by the court dismissing the application would be a hyper technical approach rather than doing substantive justice.

The respondent had relied upon N.Mani v.Sangeetha Theatre; (2004) 12 SCC 278 to contend in the instant case there was only a technical problem, which was already removed by the learned ADJ court by directing the respondent to file amended petition of divorce under the Special Marriage Act.

In the instant case, there is no lack of inherent jurisdiction of the forum to deal with the divorce petition. It is the same district judge who deals with the divorce petitions under different enactments. The question was whether persons who had got married under Special Marriage Act, can be given divorce when the petition for divorce has been filed under H.M.A, certainly answer to this question is in negative. But then, the question would arise should the petition be amended? The trial court has suo moto given direction to amend the petition.

The Delhi High Court has held above that there is no inherent lack of jurisdiction in the case in hand, therefore, to contend that the appellant's participation will not confer the jurisdiction in the court has no merit. The only wrong committed was the use of wrong provision by the respondent. As such objection ought to have been taken in the very beginning, as it was not done, then, what will be implicit is the waiver and the appellant should be estopped from raising the same at the belated stage. As regards the question of cause of action existed or not, that are the aspect of merit and shall have to be dealt with by the court concerned. Even the question of concealment of facts, as alleged, is concerned, that is a question of merit of the matter and need not and cannot be gone into when the dismissal of the petition is sought on account of certain procedural irregularity.

The respondent has primarily relied upon two judgments of Bombay High Court. These are:  Anandrao vs. Madhuri.; 2009 (111) Bombay LR 832  and Anupam Das Vs Smt Mampi Das AIR 2008 Gau 3.

In Suman Kundra (Supra), the marriage originally had taken place according to Hindu Rights and Ceremonies in the year 1986. The said marriage was dissolved by a decree of divorce from a competent court on 02.06.1988. The parties had again got married under the Special Marriage Act and once they got married under Special Marriage Act, therefore, their conduct with regard to the grant of divorce or relationship would be covered under the Special Marriage Act only. The respondent filed a petition for divorce under the Hindu Marriage Act. It is only incidental that some of the grounds which are available in the Hindu Marriage Act may be available as a ground for divorce under the Special Marriage Act or under the other matrimonial laws like Christian Marriage Act, but that would not be a ground to convert a petition which is filed under one enactment to a petition under another enactment as that would be resulting in chaos, because, then, there will be no end to the plea which will be available to a party though the marriage had taken place in a particular law, but, the ground of divorce is available in the different law and that is why the petition is maintainable. The law regarding amendment of the plaint or a petition is incorporated under Order VI Rule 17 of the CPC and that envisages amendment of a plaint or a written statement on an application and not on direction of the court meaning thereby that only when an application is filed by either the plaintiff or the defendant for amendment of its pleading, the court will be called upon to decide the said application at that point of time. The court has no power of its own unlike under Section 151 CPC or under Order 14 Rule 5CPC or under Order 1 Rule 10 of CPC to pass an order which may be warranted. The learned Trial Judge has exceeded its jurisdiction of also giving a direction to the respondent to amend the plaint and treat the provisions of Section 13 (1)(a) i.e. ground of cruelty as a ground for grant of divorce under the Special Marriage Act, but, at the same time, it is also noted that the courts must act in a manner so as to deliver substantive justice and to ensure that a litigant is not made into a litigant non grata for inadvertent deficiencies as the same might lead to a meritorious case being thrown out at the very threshold for mere technicalities.

It is also assumed that when a party approaches a counsel for legal advice and entrusts the matter to him, it is presumed that the same shall be dealt with utmost professionalism and due despatch. In Rafiq v. Munshilal; (1981) 2 SCC 788, the Hon'ble Supreme Court has held that once a person engages his counsel his botheration goes and it is the duty of the counsel to take care of the case. In the instant case, the inadvertent drafting error seems to have crept in on the part of the drafting counsel which mistake should not prejudice the interest of the party.

The Hon'ble Supreme Court in Bhuwan Mohan Singh Vs Meena AIR 2014 SC 2875 has observed that all such applications pertaining to maintenance, divorce, custody of child must be decided expeditiously by the court owing to the factum that the lis before it pertains to emotional fragmentation and delay can feed it to grow. The instant case was filed in 2005 and we are in 2015, in the last ten years, the matter has not seen any substantial progress on account of the same being lying pending in the docket of this court merely due to an inadvertent drafting error which can be rectified on an amendment simpliciter.

The Delhi High Court in Suman Kundra (Supra)  in the light of the above had partly allowed the appeal while holding that the court had no power suo moto to amend the plaint or give directions to that effect to any party. However, keeping in view the peculiar facts and circumstances of the case, that the case has been pending in court for the last nearly ten years and it would advance substantive justice between the parties, an opportunity is given to the respondent to take corrective steps within a period of six weeks to rectify his mistake. It was thus directed that in case such an application is filed, it shall be dealt with in accordance with law. The parties are directed to appear before the learned District Judge.

                        REMARK

It is essential to note that, though, the pleadings are of utmost importance, but, so are the provisions of law, under which a petition is filed. The courts cannot be oblivious to the obvious i.e the prospective harms to a party to the lis, hence, courts are to be by and large guided by the substantive justice, rather than, ousting a party on hyper technicalities, more so, in matrimonial cases, which are not like a commercial disputes and such cases are required to be dealt with in a different manner as human fallibilities, may cause irreversible void to the psyche of a person and scar whereof can probably never be mitigated in such disputes. The approach, therefore, in such cases, ought to be humane and to find a solution, rather than to accentuate it and in any case, no premium should be accorded to the delaying tactics adopted by the parties. Any objection with regard to jurisdiction  or lack of it, should be raised right in the beginning and in a later stage if the objection is raised and acceded to, which may be raised designedly, as the same is likely to cause incalculable harm to the other party and therefore, it should be deprecated in general and in matrimonial cases, in particular and deterring costs should be imposed on delaying parties. The Delhi High Court appears to have taken note of that in the above case.

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                                Anil K Khaware

                        Founder & Senior Associate

                        Societylawandjustice.com