THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
CIVIL REVISION PETITION No. 5336 OF 2013 Dated:02-09-2014 Between:
Hareesh Kakarla
... PETITIONER
AND
E. Swetha
.. RESPONDENT
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 5336 OF 2013 ORDER:
The petitioner is the husband of the respondent. Their marriage took place in the year 2003 at Hyderabad and both of them started living in USA after marriage. A child was born in the year 2009. Disputes appear to have arisen between the parties. According to the petitioner, proceedings were initiated before the Superior Court in the State of Arizona and a decree of divorce was granted.
The respondent filed O.P No. 1456 of 2012 in the Additional Family Court, City Civil Court, Hyderabad, for divorce under Section 13 of the Hindu Marriage Act, 1955 (for short, ‘the Act’) against the petitioner. Declaration was sought to the effect that divorce obtained by the petitioner in the Superior Court of the State of Arizona is not binding on her. Other ancillary reliefs in the form of a decree for return of gold, cash etc., and permanent alimony were also claimed. After receipt of notice in the O.P., the petitioner filed I.A No. 355 of 2013 under Section 7of the Act read with Section 13 and Rule 11 of Order VII CPC, with a prayer to reject the O.P. According to him, the O.P is not maintainable once the marriage between the parties has been dissolved by a Court of competent jurisdiction in USA and where there is no subsistence of marriage at all, the question of granting divorce does not arise.
The respondent opposed the I.A by filing a counter affidavit. She pleaded that the decree from the Superior Court at Arizona was obtained fraudulently and that it is not binding upon her. It was also pleaded that even if there existed a decree, it would constitute the basis for the plea of res judicata and the O.P cannot be rejected.
The trial Court dismissed the I.A., through order dated 26- 11-2003. Hence this revision.
Heard Smt. K. Lalitha, learned counsel for the petitioner and Smt.D. Pramada, learned counsel for the respondent.
The basis for the petitioner to file an application under Order VII Rule 11 CPC for rejection of the O.P is a decree stated to have been obtained from the Court at Arizona, granting the decree for dissolution of marriage between him and the respondent. Even the respondent took note of the same and claimed the relief by making a specific reference thereto.
It is only when the defendant in a suit or a respondent in the O.P is able to establish the grounds enlisted in Rule 11 of Order VII CPC that the Court can consider the feasibility of rejecting the plaint or the O.P., as the case may be. In the instant case, the petitioner is not able to demonstrate that any ground pleaded by him fits into Rule 11 of Order VII, CPC. Even if the facts pleaded by him are taken as true, he is entitled to rely upon the decree passed by the Court at Arizona as a defence. In other words, he can raise the plea of res judicata as one of the defences. It is fairly well established that the plea of res judicata is a mixed question of fact and law. It is only when the relevant facts, namely, that as between the same parties, a Court of competent jurisdiction has decided the issue which falls for consideration in the subsequent set of proceedings, that the Court can refuse to adjudicate the same issue once again. On such facts being proved, it operates as a bar in law. Even when there is no dispute regarding a judgment or decree in a different set of proceedings as operating res judicata, it cannot be a basis for rejection of the plaint. The trial Court has taken the correct view of the matter and this Court is not inclined to interfere with the same.
The C.R.P is accordingly dismissed.
The miscellaneous petitions filed in this revision shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J
02-09-2014
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