@JUDGMENTTAG-ORDER
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?
It appears that an ex-parte decree for restitution of conjugal rights was obtained by the respondent herein from die 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 8, 1973.
On December 13, 1973 the respondent filed an application u/s 13 of the Hindu Marriage Act (hereinafter referred to as 'the Act') 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 of cohabitation as between the parties for a period
of 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 a number of grounds. On March 20, 1974 the court proceeded to frame the issues. Aggrieved by the form
of issue No. 3 and the burden of proof thereof, the petitioner wife has as already stated, approached this court in revision.
2. 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 Section 23 of the Act which controls all proceedings 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 contention drawn our attention to the rulings reported as Chaman Lal
Chuni Lal Vs. Smt. Mohinder Devi, and Captain B.R. Syal Vs. Smt. Ram Syal, ; Laxmibai Laxmichand Shah Vs. Laxmichand Ravaji Shah, and
Smt. Hirakali Vs. Dr. Ram Asrey Awasthi, .
3. 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 Section 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 Section 23 of the Act has nothing to do with the placing of the burden of proof of the issue.
4. We have given our careful consideration to (the submissions of the learned counsel for the parties.
5. 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 Section 115 of the CPC so far as the words 'case' occurring therein is concerned, we regret we cannot
accede to his contention.
6. In our opinion the phraseology of Section 115 of the CPC is wide enough to cover also a part of the proceedings, as held by one of us in S.
Bishan Singh v. 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 AIR 1943 65 (Lahore) where it was held as follows:
The word 'case' in Section 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 Section 115 but it will be open to revision only it the other conditions expressly laid down in Section 115 are satisfied and the order has resulted
or is likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary
jurisdiction of the High Court at that stage.
In R. Srinivasa Row Vs. Kaliaparumal and Another, 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 Purohit Swarupnarain Vs. Gopinath and Another, that
where it open to a party to raise a ground of appeal under S. 105 of the CPC from the final decree or order with respect to airy order which has
been passed dur ing the pendency of the case, no revision would be competent, was overruled by their Lordships of the Supreme Court in Major
S.S. Khanna Vs. Brig. F.J. Dillon, 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 proceedings in which the appellate jurisdiction of the
High Court is excluded for the reasons of the public policy.
7. 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 over-rule the first contention raised by Mr. Inderjeet Gupta.
8. The second contention of Mr. Inderjeet Gupta is also devoid of substance. A plain reading of Section 23 of the Act would show that the
provisions of the section are mandatory and non-compliance therewith deprives the court of its jurisdiction to grant a decree for 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 petitioner-wife. Any other view of
the matter would clearly run counter to the clear and unambiguous language of Section 23 of the Act.
9. 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 appeal. In the result issue No. 3 would stand modified and cast in the following form:
Whether the petitioner-husband in asking for divorce is not taking advantage of his own wrong or disability? O.P.P.
10. The parties are directed to appear before the learned District Judge Jammu, on May 7, 1975 to enable him to proceed with the cross-
examination of the respondent herein.
