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G.Krishnakumar vs Iii Additional Family Court on 10 December, 2018



DATED : 10.12.2018



W.P.(SR)No.59543 of 2018

G.Krishnakumar .. Petitioner

1. III Additional Family Court,
City Civil Court Building,

2. D.Suganya .. Respondents
Prayer : Writ petition filed under Article 226 of the Constitution of
India praying for a Writ of Certiorarified Mandamus calling for the
records pertaining to the common order dated 28.04.2018 passed by
the first respondent and quash the same and consequently direct the
first respondent to take on file and dispose of the case in O.P.No.600 of
2007 afresh on merits after permitting the petitioner to participate and
cross examine the witnesses of the second respondent and advance his
For Petitioner : Mr.V.M.G.Ramakannan


The prayer of the petitioner is to quash the common order dated

28.04.2018 passed by the first respondent and direct the first

respondent to hear O.P.No.600 of 2017 afresh on merits. Since the

Registry entertained doubt about the maintainability of this writ

petition under Article 226 of the Constitution, it is listed today under

the caption “for maintainability”.

2. Heard the learned counsel appearing on behalf of the


3. The case of the petitioner is that his wife/second respondent

instituted O.P.No.600 of 2007 under Section 13(1)(i-a) read with

Sections 25 and 26 of the Hindu Marriage Act, 1955 (in short, “the

Act”) seeking divorce on the ground of cruelty and to pay her a sum of

Rs.25,00,000/- as permanent alimony and to grant custody of the

minor daughters S.Aishwarya Shivani @ Hamapoorani and Gopiksha

Mirinalini. However, he filed O.P.No.1398 of 2011 under Section 9 of

the Act praying for restitution of conjugal rights. The trial court,

without permitting the petitioner to participate in the trial and cross

examine the witnesses of the second respondent and advance his

argument, passed the impugned judgment and decree on 28.04.2018.

Hence, he is before this Court under Article 226 of the Constitution of


4. The facts of the case in hand show that the marriage

solemnized between the petitioner and the respondent in the year

1995 failed to bring happiness to the couple. It is also stated that after

strained relationship, they were living separately from 03.08.2003 and

in such circumstances, the respondent filed the petition, inter alia,

seeking divorce. Though she sought interim maintenance, which was

granted on certain grounds, the petitioner committed breach of the

conditions. A perusal of the impugned judgment dated 28.04.2018

passed by the III Additional Family Court would make it crystal clear

that the defence was struck off on the above said ground vide the

order dated 30.03.2015 passed in I.A.No.2559/2013 and subsequent

orders dated 05.01.2018, 08.02.2018 and 21.03.2018 leading to the

passing of the impugned judgment and decree in favour of the


5. Once judgment and decree is passed, it is appealable under

Section 28 of the Act, as the parties herein are governed by the Act,

read with Section 19 of the Family Court Act, 1984, as the judgment,

having been given by the Family Court. This writ petition is filed by the

petitioner on the ground that he was not permitted to participate and

cross-examine the witnesses of the respondent to prove his stand in

the divorce proceedings.

6. At this juncture, it is relevant to note that this Court in Janaki

V. V.Sundaram, reported in 2001 1 CTC 489 has held as follows :

“21. A.N. Saha in his book (Marriage Divorce’, Fifth
Edition (1996) has stated that the pre-existing order of
maintenance by a criminal court does not oust the
jurisdiction of a Matrimonial Court to grant maintenance
pendente lite. If the amount received by the petitioning
spouse is sufficient for her support, the court is justified in
refusing maintenance pendente lite under Section 24, Hindu
Marriage Act. Due to poverty and hunger, if the wife is not in
a position to defend her case properly, such a weak position
of the wife should not be exploited by the husband, and this
is the main reason for introducing Section 24 in the Hindu
Marriage Act. A litigation before the family court must be
between parties of equal footing. A starving wife cannot be
compelled to face the trial. Basic needs like education of
children, and food for them will have to be provided, and
only after satisfying the basic needs, the wife could be
compelled to plead her case. If the husband has committed
breach of his promise and when that is reminded to the
court by filing an application under Section 24 of the Hindu
Marriage Act, the court should not have simply returned it
on the ground that the case is posted for enquiry. For more
than 30 postings, the court did not show any eagerness or
anxiety, to get on with the matter. But when the difficulty of

the wife was brought to the notice of the court, it took a
different stand. The apprehension of the wife, petitioner
herein, is genuine, namely, that the Family Court is not
doing the justice which is expected of it. The very purpose
of establishing a family Court is to have a different
atmosphere in regard to settlement of family problems. In
most of the cases, parties are likely to say many matters out
of the way. But they act so only out of their anxiety and,
anguish due to difficulties in the family. They may also do
not know the procedures in a court of law. In such
circumstances, the approach of the family court should not
be that of a master with an iron hand. The family court is
expected to understand the problems and create a good
atmosphere and thereby instill faith and confidence in the
mind of the parties. It is here the family court has miserably
failed. It has been settled in various cases that without
paying the alimony, the husband is not entitled to proceed
with the case. In this case, there is an order under Section
125, Cr.P.C. which the husband should have obeyed. During
the 32 postings, not a pie has been paid towards litigation
expenses should not the family court consider these aspects
before making a comment on the counsel and also before
returning the application under Section 24 of the Hindu
Marriage Act? When I say this, it should not be understood
that I have justified the behaviours of the counsel before the
Family Court The counsel also should behave politely and
due respect should be shown to court, so that decency and
decorum could be maintained. The image of a court of law
could never be allowed to be tarnished in any way The
family court also deserves all the respects of a court of law,
either from the counsel or from the party.


27. Once it is found that on the date when the
petitioner herein was set ex parte, her application for getting
interim alimony was also pending, without disposing of the
same, the Court cannot get jurisdiction to pass a decree of
divorce. The impugned Order is, therefore, illegal. While
passing the decree, the Court below has committed an
illegality and the husband has also overreached the
compromise and has really committed fraud in not paying the
amount which he had agreed to pay. The Court below, by
passing an ex parte decree in spite of the fact that an
application under Section 24 of the Hindu Marriage Act is
pending before it in which these facts are stated, has
rendered itself a party to such an illegality. A Court may pass
a wrong decree or take a wrong decision. But knowingly
when the pendency of the application was brought to the
notice of the Court, passing an ex parte decree is not proper.
The Family Court has certain exceptions in following the
procedures, which an ordinary Civil Court does not have,
since it deals with human problems.”

7. Thus, the petitioner cannot be allowed to take advantage of

his own wrong. It was always open to him to obey the order passed for

payment of interim maintenance amount due to the respondent and to

get his defence restored. Having failed to do so and allowed the

original petition to be decreed, he can only challenge it by way of an

appeal under Section 28 of the Act read with Section 19 of the Family

Court Act, 1984 and the writ petition as such is not maintainable.

8. Accordingly, this writ petition is rejected at the SR stage itself.

However, there shall be no order as to costs.

Speaking / Non-speaking Order
Index : Yes/No


The III Additional Family Court,
City Civil Court Building,



W.P.(SR)No.59543 of 2018


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