IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF APRIL 2018
BEFORE
THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
WRIT PETITION NO. 17077/2018 (GM-FC)
BETWEEN:
SMT. P. SUGUNA
W/O. S. PRASANNA KUMAR,
AGED ABOUT 54 YEARS,
RESIDING AT ‘VASAVI NILAYA’,
No.3, 1/1, 1ST FLOOR,
4TH CROSS, 1ST MAIN,
SANJEEVINI NAGAR,
NAGARABAVI POST,
BENGALURU – 560072 ….PETITIONER
(BY SRI RAVI H. K., ADVOCATE)
AND:
S. PRASANNA KUMAR
S/O. LATE SRINIVASA SHETTY,
AGED ABOUT 56 YEARS,
RESIDING AT ‘VASAVI NILAYA’,
No.3, 1/1, 1ST FLOOR,
4TH CROSS, 1ST MAIN,
SANJEEVINI NAGAR,
NAGARABAVI POST
BENGALURU – 560072. ….RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 13.4.2018 AT ANNEX-H PASSED BY THE
COURT OF THE PRL. JUDGE, FAMILY COURT AT BENGALURU ON
-2-
I.A.11 FILED UNDER SECTIONS 13(1)(i) AND 13(1)(ib) OF
HINDU MARRIAGE ACT AND R/W SECTION 151 OF CPC 1908 BY
THE PETITIONER IN M.C. NO. 18/2014, ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is aggrieved by the order dated
13.4.2018 passed by the Principal Judge, Family
Court, Bangalore, whereby the learned Family Court
while allowing the petitioner’s applications for re-
opening the case, for recalling RW-1 for further cross-
examination, and for submitting additional documents
to support her case, has rejected the petitioner’s
application challenging the maintainability of the
divorce petition filed by the respondent.
2. Briefly the facts of the case are, that on
10.9.1985, the petitioner and the respondent were
married according to the Hindu rites and customs.
Since differences arose between the parties, the
-3-
respondent-husband eventually filed a divorce
petition, initially on the ground of cruelty, and
subsequently after amending the divorce petition on
the ground of desertion and adultery. The petitioner
filed her application viz., I.A.No.11 under Or. VII, Rule
11 read with Section 151 of the Code of Civil
Procedure, 1908 (‘the Code’ for brevity). The
petitioner also filed I. A. Nos. 12, 13 and 14 for re-
opening the case, for recalling the witness for further
cross-examination, and for production of additional
documents to support her case. By order dated
13.4.2018, the learned Family Court, as mentioned
above, has allowed I. A. Nos. 12, 13 and 14, but has
dismissed the application I. A. No. 11, challenging the
maintainability of the divorce petition. Hence, the
petitioner is before this Court.
-4-
3. Learned Counsel for the petitioner has relied
on the case of R.K.Roja v. U.S.Rayudu and
Another (Civil Appeal No.5540/2016 decided by
the Apex Court on 4.7.2016), in order to plead that
once an application under Order VII Rule 11 of the
Code has been filed, the trial court is duty bound to
consider the said application. While considering the
said application, the trial court is only permitted to
look at the plaint. If the plaintiff were to fail to
establish a prima facie case in his favour through his
pleadings, or in case the suit is barred by law, or for
other grounds mentioned in the said provision, the
learned trial court should return the plaint.
Secondly, a bare perusal of the plaint filed by
the respondent reveals that although he has vaguely
alleged adultery, but he has not made concrete
allegations for establishing the ground of adultery.
Moreover, the respondent has clearly alleged that he
-5-
was thrown out of the matrimonial home on
23.5.2012 and the divorce petition was presented on
1.1.2014. Therefore, the required time of two years,
from the date of desertion to the date of presentation
of the plaint, was not even over. Thus, the divorce
petition could not be presented within the period of
two years. But despite the fact that the petitioner had
raised these pleas before the learned Family Court,
the learned Family Court has dismissed the
petitioner’s application by order dated 13.4.2018.
Thirdly, the order of the Family Court is a non-
speaking one, as no reasoning has been given for
dismissing the petitioner’s application I. A. No. 11.
Hence, the impugned order deserves to be set aside
by this Court.
4. Admittedly, as the things stand, after the
amendment of the plaint, the respondent-husband has
-6-
filed the divorce petition on three grounds viz.,
cruelty, desertion and adultery.
5. According to the case of R.K.Roja (supra),
once an application is filed under Order VII Rule 11 of
the Code, the Court has to dispose of the said
application before proceeding with the trial. The said
principle established by the Apex Court cannot be
doubted. However, it is not the case of the petitioner
that the said application has not been disposed of
while continuing to proceed with the trial. In fact,
according to the facts of this case, the application has
been “disposed of” while allowing the three
applications filed by the petitioner herself. Therefore,
the principle enunciated by the Apex Court in the case
of R.K.Roja (supra) is inapplicable to the present
case.
-7-
6. A bare perusal of the facts of this case clearly
shows that the petitioner is blowing hot and cold
simultaneously, on the one hand, she challenges the
maintainability of the plaint itself, and yet on the other
hand, she prays before the learned Family Court that
a witness be recalled, an opportunity to cross-
examining the said witness be given, and an
opportunity to produce additional documents shall be
granted to her. In case the petitioner was actually
aggrieved by the maintainability of the petition itself,
there was no reason for the petitioner to have filed
the three IAs for the above mentioned purposes. The
act of filing these three interim applications, which
have been duly allowed by the Trial Court, clearly
shows that the petitioner is not interested in really
challenging the maintainability of the plaint.
Interestingly, her three applications, mentioned
-8-
above, have been allowed and the trial court proceeds
after allowing those three applications.
7. Admittedly, the respondent-husband had
approached the learned Family Court on the ground
that he has been subjected to cruelty, that the
petitioner has deserted him, and that the petitioner is
allegedly indulging in adulterous affair. Even if the
plaint lacks the particulars with regard to the ground
of desertion and adultery, it is a matter of evidence to
be proved by the respondent-husband. Therefore, at
the initial stage, it will be too early to say that the
plaint is not maintainable. Moreover, it is not
essential that the respondent should succeed on all
the three grounds in order to get a decree of divorce.
Even if the respondent were to succeed on the ground
of cruelty, the decree of divorce can be granted in
favour of the respondent. Furthermore, the
maintainability of the plaint has to be seen as a whole,
-9-
not in a piecemeal. Therefore, even if one of the
grounds still survives viz., ground of cruelty,
obviously, the plaint cannot be dismissed as not
maintainable.
8. The learned Counsel has further pleaded that
the plaint could not be filed within two years of the
alleged date of desertion. But even this is subject to
evidence. Thus, the said plea could not be accepted at
the initial stage in absence of the requisite evidence.
9. The learned Counsel has further pleaded that
the impugned order is not a speaking one. But once
the three IAs filed by the petitioner were allowed,
there was no need for the learned Family Court to
explicitly give reasons for dismissing the I. A. No. 11.
Moreover, valid reasons can be given by this Court
while considering this petition. The same have been
stated hereinabove.
– 10 –
9. For the reasons stated above, this Court does
not find any merit in the present writ petition. Hence,
it is, hereby, dismissed.
SD/-
JUDGE
KNM/-