IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6th DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.16074 OF 2019 (GM-FC) BETWEEN:
SUMANA N V D/O VIJAYA N SALIAN AGED 47 YEARS R/AT REGIONAL BUSINESS OFFICE STATE BANK OF INDIA BANNANJE ROAD UDUPI – 576 101 UDUPI DISTRICT (BY MR. S K ACHARYA, ADV.) AND:
CHANDRA S/O LATE VITTAL AGED 59 YEARS R/AT POST PITRODI UDYAVARA VILLAGE UDUPI TALUK AND DISTRICT UDUPI – 576 101 (BY MR. P P HEGDE, ADV.) … PETITIONER … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 13.02.2019 PASSED IN I.A.NO.V IN MC NO.169/2016 ON THE FILE OF THE COURT OF THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, D.K. MANGALURU, VIDE ANNEXURE-A; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.S.K.Acharya, Learned counsel for the petitioner.
Mr.P.P.Hegde, learned counsel for the respondent.
Petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
2. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 13.02.2019 passed by the 1st Additional Principal Judge, Family Court, by which the application filed by the petitioner under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code' for short) for rejection of the plaint has been rejected.
3. Facts giving rise to filing of the petition briefly stated are that the respondent filed a petition seeking dissolution of marriage under Section 13(1)(i-a) and 13(i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for short), which was dismissed by the Family Court vide judgment dated 05.07.2014. Being aggrieved, the respondent has filed an appeal viz., M.F.A.No.5264/2014, which is pending consideration before this Court. In the aforesaid proceeding, the petitioner filed an application under Section 9 of the Act seeking restitution of conjugal rights by way of counter claim, which was decreed and the petition filed by the respondent-husband was dismissed vide judgment and decree dated 05.07.2014. After a period of one year, the respondent filed a petition under Section 13(1A)(ii) seeking dissolution of marriage on the ground that there has been no restitution of conjugal rights between the parties for one year of marriage or upwards after the decree. In the aforesaid proceedings, the petitioner filed an application under Section 151 of the Code seeking rejection of the plaint inter alia on the ground that the proceedings is not maintainable. The Family Court, however, vide impugned order dated 13.02.2019 inter alia rejected the application preferred by the petitioner on the ground that the petitioner has not executed the decree for restitution of the conjugal rights. In the aforesaid factual background, the petitioner has approached this court.
4. Learned counsel for the petitioner submitted that merely because petitioner has not executed the decree, the same does not entitle the respondent to file another petition seeing divorce. On the other hand, learned counsel for the respondent submitted that the law furnishes a ground to the petitioner to seek dissolution of the marriage and the petition is based on a fresh cause of action. In support of the aforesaid submission, learned counsel for the respondent has placed reliance on a decision of the High Court of Madras in ‘M.SENTHIL KUMAR VS. K.S.YASHODHA’, CMP Nos.420, 421 and 3765/2018 decided on 13.08.2018.
5. I have considered the submissions made by learned counsel on both the sides and have perused the record. It is well settled in law that when an application under Order VII Rule 11 of the Code is filed, the Family Court/Trial Court is required to decide the application on the basis of the averments made in the plaint alone. In other words, in order to ascertain the maintainability of the proceedings, the averments made in the plaint alone have to be looked into. [SEE:’SALEEM BHAI AND ORS. VS. STATE OF MAHARASHTRA AND ORS.’, (2003) 1 SCC 557].
6. In view of the above well settled legal position, the Family Court has to take into account the averments made in the plaint while dealing with the application preferred by the petitioner. The limited question, which arose for consideration before the Family Court was whether on the basis of the averments made in the petition filed by the respondent on the ground that the dissolution of marriage as prescribed under Section 13(1A)(ii) of the Act was made out, however, the aforesaid aspect of the matter has not been appreciated by the Family Court. The impugned order therefore, suffers from jurisdictional infirmity as well as error apparent on the face of the record. The impugned order is therefore, quashed. The matter is remitted to the Family Court to decide the application filed by the petitioner afresh in the light of the observations made in the aforesaid order expeditiously preferably within a period of one month from today.
Accordingly, the writ petition is disposed of.
Sd/- JUDGE SS