Gujarat High Court
Amrut Jamalbhai Sapra vs Jagrutiben W/O Amrut Jamalbhai Sapra ... on 7 July, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
C/FA/2788/2024 JUDGMENT DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2788 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In
R/FIRST APPEAL NO. 2788 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Sd/-
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Approved for Reporting Yes No
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AMRUT JAMALBHAI SAPRA
Versus
JAGRUTIBEN W/O AMRUT JAMALBHAI SAPRA D/O DHANJIBHAI
BHUVATRA
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Appearance:
MR CB DASTOOR(238) for the Appellant(s) No. 1
MR.AKASH J PANDYA(7206) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
Date : 07/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. This appeal under Section 19 of the Family Courts Act is filed against the judgment and order dated 01.06.2024 passed by the Judge, Family Court No.7, Ahmedabad in Family Suit No.2273 Page 1 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:48:58 IST 2025 NEUTRAL CITATION C/FA/2788/2024 JUDGMENT DATED: 07/07/2025 undefined of 2022.
2. The facts in brief are that the appellant got married with the respondent as per the Hindu rites and customs on 12.06.2006 at Ahmedabad and whereby since the appellant and the respondent were living together and enjoying their marital life. The said marriage was registered before the Registrar of Marriages on 05.04.2013 at Juna Vadaj, Ahmedabad. Out of the said wedlock , the respondent gave birth to a child, named Nyasha. 2.1 The respondent started living separately from his parents by purchasing a flat by obtaining a loan and is regularly paying the loan installments. Even then on pity quarrel, the respondent left the residence of the appellant for which the appellant in the year 2017 had filed a petition of restitution of conjugal rights u/s 9 of the Hindu Marriage Act and whereby the settlement was arrived between the parties and the respondent started to live with the appellant.
2.2 Again the respondent left the appellant's house and filed maintenance application against the appellant u/s 125 of Code of Criminal Procedure being Misc. Crim. Application No. 2064 of 2018. The respondent has also filed criminal complaint under domestic violence act against the present appellant being Misc. Crim. Application No. 2753 of 2018.
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NEUTRAL CITATION C/FA/2788/2024 JUDGMENT DATED: 07/07/2025 undefined 2.3 The respondent has deserted the appellant and filed several criminal complaints against him therefore the appellant had filed divorce petition u/s 13(1) of the Hindu Marriage Act being HMP No.35 of 2018 before the Family court Ahmedabad whereby the appellant advocate has filed a pursis at Exh. 24 for the withdraw of the suit.
2.4 The appellant had again filed the Family Suit No.2273 of 2022 before the Family Court, Ahmedabad for dissolution of Marriage u/s 13(1) of the Hindu Marriage Act, whereby the Family Court rejected the suit of the appellant.
3. Learned Advocate for the appellant submitted that the Family Court has materially erred in rejecting the suit of the appellant on the ground of the principles of Res-Judicata. As such, the earlier suit was not adjudicated on merits. 3.1 It is submitted that the technical drawback should not restrain the litigants from asserting their rights and getting the dispute adjudicated by appropriate judicial proceeding and that no- one can be non suited purely on technical ground. It is submitted that earlier the suit was filed for dissolution of marriage by the appellant, however, at the very initial stage of proceedings the suit was withdrawn on misleading statements/advise of the appellant advocate that the suit is barred u/s 2(2) of the Hindu Marriage Act. Page 3 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:48:58 IST 2025
NEUTRAL CITATION C/FA/2788/2024 JUDGMENT DATED: 07/07/2025 undefined 3.2 It is submitted that the Family Court has erred in not appreciating the fact that both the parties have married as per the Hindu rites and Customs and the same marriage is also registered and therefore, though both parties belong to scheduled tribe, even then the provisions of Section 2 (2) of the Hindu Marriage Act is not applicable to present case.
3.3 It is submitted that the fact that earlier the appellant husband has filed the conjugal petition u/s 9 of Hindu Marriage Act before the Family Court at Ahmedabad whereby no objection was made at that time by the other side and settlement was made between the parties.
4. Learned Advocate for the respondent-wife submitted that the judgment of the Family Court is justified as admittedly, both the parties belong to scheduled tribe and therefore, the provisions of the Hindu Marriage Act would not apply.
5. It is also submitted that a previous Family Suit filed by the appellant was filed on the said ground. The respondent-wife objected to the same on the very ground and therefore, the appellant withdrew the suit. Therefore, the present suit again on the same ground is rightly held barred by principles of res judicata.
6. Having heard learned Advocates for the parties and Page 4 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:48:58 IST 2025 NEUTRAL CITATION C/FA/2788/2024 JUDGMENT DATED: 07/07/2025 undefined having perused documents on record, it appears that the issue involved is of rejection of the Family Suit as being barred by law as the application of the respondent under O-7, R-11 came to be allowed and suit came to be dismissed summarily. The paper book is already submitted. Hence, with consent, the appeal is taken up for final hearing.
7. The Court may take up the first issue regarding res judicata. This contention raised by learned Advocate for the respondent-wife and accepted by the Family Court is based on the fact that the previous proceeding being HMP No.35 of 2018 was under Section 13(1) of the Hindu Marriage Act. Though it is the case of the respondent-wife that she filed reply, raising contention of maintainability, however, on record, what is available is Exh.24, a pursis for withdrawal. In Exh.24, it is stated that the Hindu Marriage Petition was filed under a mistake, therefore sought withdrawal and based on such pursis Exh.24, the petition was disposed of.
8. The Court is of the view that as the disposal of the previous Family Suit was on the basis of withdrawal pursis, there was no adjudication and withdrawal was permitted simplicitor. Moreover, there is nothing to support the wife's contention that the withdrawal pursis was filed by the husband only after the wife raised contention of maintainability. Even if it so be, the order of Page 5 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:48:58 IST 2025 NEUTRAL CITATION C/FA/2788/2024 JUDGMENT DATED: 07/07/2025 undefined the Family Court was only on withdrawal pursis, without adjudication and therefore, will not attract Section 11 of the Code of Civil Procedure. The requirement to attract Section 11 (principle of res judicata), the matter is to be directly and substantially in issue and such issue is heard and finally decided by such Court. In the facts of this case, there is no final decision on the issue of maintainability of the suit on the ground of barred by a law.
9. The second issue is objection to maintainability raised by the respondent-wife by filing an application below O-7, R-11 contending that as the party is belonging to scheduled tribe, the provisions of the Hindu Marriage Act will not apply. Hence, Family Suit under Section 13 of the Hindu Marriage Act cannot be maintained. However, for the purpose of O-7, R-11, the relevant is the averment made in the plaint.
10. The Apex Court in case of P.V.Guru Raj Reddy & Anr. Vs. P.Neeradha Reddy & Ors., reported in (2015) 8 SCC, 331, in para-5 has held as under:-
"5. Rejection of the plaint under Order VII rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently Page 6 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:48:58 IST 2025 NEUTRAL CITATION C/FA/2788/2024 JUDGMENT DATED: 07/07/2025 undefined held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial."
11. The Court has perused the pleadings in the form of plaint under Section 13(1) of the Hindu Marriage Act and nowhere it is mentioned that the appellant-husband and wife belong to scheduled tribe, but in fact, in the plaint, it is stated that both husband and wife have been married as per the Hindu rites and rituals and following Hindu religion and it is the case of the respondent-wife that they both belong to scheduled tribe and therefore, in the opinion of the Court, the issue is triable and has to be adjudicated on the basis of evidence that may be led during a trial.
12. In the facts of the present case, there is no issue framed as to whether the parties belong to scheduled tribe and that there is a custom or practice within the scheduled tribe regarding Page 7 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:48:58 IST 2025 NEUTRAL CITATION C/FA/2788/2024 JUDGMENT DATED: 07/07/2025 undefined marriage and divorce.
13. Moreover, in view of the provisions of Section 7(2) of the Family Courts Act, it cannot be said that the jurisdiction of the Family Court is ousted for adjudicating upon a divorce petition even if the Family Suit is filed under a different provision. It is still open for the Family Court to invoke Section 7 of the Family Courts Act.
14. In view of the aforesaid, the appeal is allowed. The judgment and order dated 01.06.2024 passed by the Judge, Family Court No.7, Ahmedabad in Family Suit No.2273 of 2022 is hereby quashed and set aside. As a consequence, the Family Court is directed to hear and proceed with the case on merits after giving full opportunity of hearing and to lead evidence by the either party and decide the same in accordance with law.
Direct service is permitted.
Sd/-
(A.Y. KOGJE, J) Sd/-
(NSSG,J) SHITOLE Page 8 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:48:58 IST 2025