MEENAL NIGAM Vs. RAVI KALSI

JUDGEMENT

(1.) Heard Mr. Lalwani, learned Counsel for petitioner and Mr. Moray, learned Counsel for respondent at length. Rule. Mr. Moray waives service. At the request and by consent of the parties, rule is made returnable forthwith and the Petition is taken up for final hearing. By this Petition under Article 227 of the Constitution of India, the petitioner-wife has challenged the judgment and order dated 12-6-2014 passed by the learned Judge, Family Court No. 5, Mumbai below Exhibit-22/A in Petition No. A-2405 of 2013. By that order, the Family Court dismissed the application made by the petitioner for delivering the judgment of divorce on admission under Order 12, Rule 6 of the Code of Civil Procedure, 1908 (for short 'C.P.C.').

(2.) In support of this Petition, Mr. Lalwani submitted that the petitioner-wife has instituted Petition for Divorce being M.J. Petition No. 2405 of 2013 under section 13(1)(i-a) of the Hindu Marriage Act, 1955 (for short 'Act') on the ground of cruelty and for custody of minor son Jasraj to her. The respondent filed written statement along with the counter claim. In paragraph 1 of the counter claim, respondent submitted that the intention of the petitioner is to torture and harass him. It was further contended that on the contrary, it is he who has suffered mental and physical agony and harassment at the hands of the petitioner and the details were set out in the counter claim. In paragraph 16, respondent contended that the marriage is now beyond any reasonable hope of reconciliation. He also prayed for dissolving the marriage under section 13(1)(i-a) and/or (i-b) of the Act and also sought permanent custody of the minor son Jasraj.

(3.) The petitioner filed application in March, 2014 (Exhibit-22/A) for delivering judgment of divorce on admission under Order 12, Rule 6, Civil Procedure Code. In paragraph 3, she admitted that she has withdrawn from the respondent's society and deserted the respondent for a period of more than 2 years preceding the counter claim. Mr. Lalwani submitted that admission is clear and unqualified and is in terms of the requirements of section 13(1)(i-b) of the Act. Respondent filed his reply on 7-5-2014. The reply is filed while the counterclaim is pending. He submitted that the Family Court dismissed the application on the ground that the petitioner is taking undue advantage of her own wrong. In view of section 23 of the Act, it is well settled law that the wrong-doer cannot take advantage of his/her own wrong.