IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.15639 OF 2019 (GM-FC) BETWEEN:
SMT NETHRAVATHI M L D/O SRI M K LINGAIAH 1ST WIFE OF DR B N SHIVASWAMY AGED ABOUT 45 YEARS NATIVE MARUVANAHALLI VILLAGE BAGUR HOBLI CHANNARAYAPATNA TALUK NOW RESIDING AT C/O HARISH K M RANGANATHA NILAYA 1ST MAIN 2ND CROSS VIVEKANANDA NAGARA BEHIND CHOWDESHWARI PETROL BUNK CHANNARAYAPATNA – 573 116 (By MR.AJESH KUMAR S, ADV. FOR MR.GOVINDA GOWDA K T, ADV.) AND:
DR B N SHIVASWAMY S/O LATE NINGE GOWDA AGED ABOUT 46 YEARS RESIDING AT BEECHAGONDANAHALLI VILLAGE BAGUR HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT – 573131 ALSO WORKING AS A DOCTOR AT HIRISAVE COMMUNITY HEALTH CENTRE HIRISAVE CHANNARAYAPATNA TALUK HASSAN DISTRICT – 573131 (By MR.R B SADASIVAPPA, ADV. FOR MR.RAVISHA M G, ADV.) … PETITIONER … RESPONDENT - - -
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN M.C NO.1/2019 ON THE FILE OF HON’BLE SENIOR CIVIL JUDGE AND JMFC AT CHANNARAYAPATNA AND QUASH THE ORDER DATED 29.03.2019 PASSED IN I.A.NO.17 IN M.C.NO.1/2019 PRODUCED AS ANNEXURE-A [IMPUGNED] AND ALLOW I.A.NO.17 FILED BY THIS PETITIONER IN THE SAID CASE; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Ajesh Kumar S., learned counsel for Mr.Govinda Gowda K.T., learned counsel for the petitioner.
Mr.R.B. Sadasivappa, learned counsel for the respondent.
Mr.Ravisha M.C., learned counsel for the respondent.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner inter alia has assailed the validity of the order dated 29.03.2019 passed by the Trial Court by which the application filed by the petitioner to put up M.C.No.1/2019 with the civil suit namely O.S.No.50/2014 for common trial and disposal, has been rejected.
4. Facts giving rise to the filing of the petition briefly stated are that the parties got married on 23.02.1995. The respondent has filed a petition under Section 13 of the Hindu Marriage Act, 1955, seeking dissolution of the marriage. The aforesaid petition was filed in the year 2011 which was subsequently re- numbered as M.C.No.1/2019 on account of its transfer to the subsequent Court. The petitioner – wife has filed a civil suit i.e. O.S.No.50/2014 seeking for a declaration that the marriage between the respondent and his second wife is not valid. It is not in dispute that both the proceedings are at the stage of evidence of the respondent. At the aforesaid stage, the petitioner moved an application under Section 151 of the Code of Civil Procedure, 1908 seeking common trial and disposal on the ground that both the proceedings be clubbed and tried together. The aforesaid application has been rejected by the Family Court by the impugned order.
5. Learned counsel for the petitioner, while inviting the attention of this Court to the explanation to Section 494 of the Indian Penal Code, 1860, submitted that in case the marriage of the petitioner is declared void, it will adversely affect the proceeding in O.S.No.50/2014. It is further submitted that in any case, the Family Court be directed to deliver the judgment in both the cases simultaneously.
6. On the other hand, learned counsel for the respondent has supported the order passed by the Trial Court.
7. I have considered the submissions made by learned counsel for the parties. The explanation to Section 494 of the Indian Penal Code provides that Section 494 does not apply to a person whose marriage with such husband or wife is declared void by a court of competent jurisdiction. In the instant case, the respondent has not filed any petition under Section 12 of the Act seeking a declaration that his marriage with the petitioner is void. On the other hand, learned counsel for the respondent has filed a petition under Section 13 of the Act seeking dissolution of the marriage. It is the case of the petitioner that during the subsistence of the first marriage, the respondent has conducted the second marriage on 18.06.2009. In other words, according to the petitioner, the petitioner has already committed the offence under Section 494 of IPC. The cause of action in both the cases are different and if both the proceedings are consolidated and common set of evidence is recorded, both the proceedings cannot be decided by way of a common judgment. The order passed by the Trial Court neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record. Even otherwise, it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423].
8. In view of the preceding analysis, I do not find any merit in the petition. The same fails and is dismissed.
Sd/- JUDGE RV