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.?”
2. It appears that an ex parte decree for restitution of conjugal rights was obtained by the respondent herein from the 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 under Section 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. 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 AIR 1968 Punj and Har 287 and AIR 1968 Punj 489; AIR 1968 Bom 332 and AIR 1971 All 201 at 203.
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 CPC. According to Mr. Inderjeet Gupta the matter can be agitated in an appeal and from the ultimate decree that may be Page: 96passed 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 and K 50. It will also be advantageous in this connection to refer to a Full Bench decision of the Lahore High Court in Bibi Gurdevi v. Chaudhri Mohammad Baksh, AIR 1943 Lah 65 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 if 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.”
7. In R. Srinivasa Row v. Kaliapammal, AIR 1966 Mad 321 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 Swarupnarain v. Gopinath, AIR 1953 Raj 137 (FB) that where it is open to a party to raise a ground of appeal under Section 105 of the CPC from the final decree or order with respect to any order which has been passed during the pendency of the case, no revision would be competent, was overruled by their Lordships of the Supreme Court in S.S Khanna v. F.J Dillan, AIR 1964 SC 497 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.
8. Keeping in view the ratio of the abovementioned decisions, we are of the opinion that the present application for revision is maintainable. Accordingly we overrule the first contention raised by Mr. Inderjeet Gupta.
9. 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 a 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 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.
11. Appeal allowed.