What are exceptions to rule that evasive denial in pleading amounts to admission in proceeding before the family court?

 It was pointed out on behalf of the appellant that none of the allegations of mental cruelty narrated in Paragraph No. 17 of this judgment as well as pleadings in the original petition was specifically denied by the respondent in her counter statement and therefore, they must be deemed to be admissions in proof of allegations of cruelty by virtue of the principle as to evasive denial incorporated in Order VIII Rule 5 of the Code of Civil Procedure, 1908 (for short, 'the C.P.C.').

21. The rules of pleading incorporated in the C.P.C. equally apply to the proceedings before the family Courts also by virtue of Section 10 of the Family Courts Act, 1984. The general principle flowing from Order VIII Rules 3 and 5 of the C.P.C. that a defendant who proposes to deny the truth of an allegation against him/her ought to do it either specifically or necessary implication in lieu of mere general or evasive denial, applies to the family courts also. Evasive denial in the pleadings of a defendant is treated by law to be an admission of the truth of allegations made against him, unless the court in its discretion is of the opinion that the undenied fact must, nonetheless, be proved otherwise than by such deemed admission. In other words, the courts have necessary discretion to take exception to such admissions and to look for independent evidence instead of fully relying on them. The exceptional cases for such exercise of discretion ordinarily relate to decisions involving issues as to status, relationship of parties and also matters of which court cannot possibly draw inference as to the truth having regard to their evidentiality. In this context, Section 23(1) of the HM Act in its application to matrimonial courts dealing with cases arising under the said Act is also very relevant. The aforesaid Section mandates that in the proceedings under the Act whether defended or not, the courts are to arrive at just decisions based only on total satisfaction drawn from the entirety of materials on record apart from the deemed admission flowing from the evasive denial referable to Order VIII Rule 5 of the C.P.C. by following the guidelines mentioned in Section 23(1). This Section does not permit passing of a decree for divorce on the ground of cruelty when the wronged spouse is proved to have condoned the cruelty of the offending spouse. So also, when the spouse sues for dissolution of marriage after taking advantage of his or her own wrong or disability also, the said provision empowers the court to refuse the relief sought notwithstanding that the truth of the allegation was not denied specifically or by necessary implication.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal No. 547 of 2013

Decided On: 18.02.2020

Santhosh Kumar S. Vs.  Jayasree Damodaran

Hon'ble Judges/Coram:

A.M. Shaffique and T.V. Anilkumar, JJ.

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When court should not permit rectification of procedural irregularity committed by party?

In Kailash v. Nanhku and Ors. MANU/SC/0264/2005 : AIR2005SC2441 , this Court has categorically held:

All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Anr. MANU/SC/2173/2005 : AIR2006SC269 , it was observed:

17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are:

i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.

ii) where the procedural defect is not rectified even after it is pointed out and due opportunity is given for rectifying it;

iii) where the non-compliance or violation is proved to be deliberate or mischievous;

iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.

v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2243 of 2009 (Arising out of SLP (C) No. 5026 of 2007)

Decided On: 08.04.2009

 Lakshmi  Vs.  Chinnammal and Ors.

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Whether magistrate should consider exceptions to Section 499 of IPC while issuing process against accused?

We have referred to these authorities to highlight
that in matters of criminal defamation the heavy burden is on
the Magistracy to scrutinise the complaint from all aspects.
The Magistrate has also to keep in view the language
employed in Section 202 CrPC which stipulates about the
resident of the accused at a place beyond the area in which
the Magistrate exercises his jurisdiction. He must be
satisfied that ingredients of Section 499 CrPC are satisfied.
Application of mind in the case of complaint is imperative.
198. We will be failing in our duty if we do not take note
of submission of Mr. Bhambhani, learned senior counsel. It is
submitted by the learned senior counsel that Exception to
Section 499 are required to be considered at the time of

summoning of the accused but as the same is not conceived
in the provision, it is unconstitutional. It is settled position of
law that those who plead Exception must prove it. It has
been laid down in M.A. Rumugam (supra) that for the
purpose of bringing any case within the purview of the Eighth
and the Ninth Exceptions appended to Section 499 IPC, it
would be necessary for the person who pleads the Exception
to prove it. He has to prove good faith for the purpose of
protection of the interests of the person making it or any
other person or for the public good. The said proposition
would definitely apply to any Exception who wants to have the
benefit of the same. Therefore, the argument that if the said
Exception should be taken into consideration at the time of
the issuing summons it would be contrary to established
criminal jurisprudence and, therefore, the stand that it
cannot be taken into consideration makes the provision
unreasonable, is absolutely an unsustainable one and in a
way, a mercurial one. And we unhesitatingly repel the same.
 In view of the aforesaid analysis, we uphold the
constitutional validity of Sections 499 and 500 of the Indian
Penal Code and Section 199 of the Code of Criminal
Procedure. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 184 OF 2014

SUBRAMANIAN SWAMY Vs UNION OF INDIA,


Dated;May 13, 2016
Dipak Misra, J.

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