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Smt P Suguna vs S Prasanna Kumar on 24 April, 2018

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
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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
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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
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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
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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,
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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/-

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