Karnataka High Court
Mrs. Sangeetha. M. R vs Sri. Hemanth S Gowda on 3 July, 2024
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NC: 2024:KHC:24973
WP No. 46678 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 46678 OF 2019 (GM-FC)
BETWEEN:
MRS. SANGEETHA. M. R.
W/O HEMANTH S.GOWDA,
AGED ABOUT 26 YEARS,
PRESENTLY R/AT GROUND FLOOR,
NEAR RAMA MANDIRA
KEMPEGOWDA NAGAR
GADDEBAYLU, MAGADI TOWN
RAMANAGARA DISTRICT - 561 120.
...PETITIONER
(BY Ms.MAHESHWARI D.M., FOR
SRI. MADHUKAR M DESHPANDE, ADVOCATE)
AND:
SRI. HEMANTH S. GOWDA
Digitally
signed by S/O LATE K.SHANKAR
SUVARNA T AGED ABOUT 31 YEARS,
Location: R/AT NO.16, 3RD CROSS, HOSAPALYA
HIGH
COURT OF MAGAMMANAPALYA POST
KARNATAKA BANGALORE - 560 068.
...RESPONDENT
(BY SRI. S. MAHESH, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO: (a)CALL
FOR THE ENTIRE RECORDS INCLUDING MEDIATION REPORT
PERTAINING TO M.C.NO.1860/2018 DISPOSED OF BEFORE THE
PRINCIPAL JUDGE, FAMILY COURT, BANGALORE. (b)SET ASIDE
THE ORDER DATED 21.06.2019 PASSED BY THE PRINCIPAL
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NC: 2024:KHC:24973
WP No. 46678 of 2019
JUDGE, FAMILY COURT BANGALORE IN M.C.NO.1860/2018
VIDE ANNEXURE-A AND CONSEQUENTLY ALLOW THE
APPLICATION DATED 21.06.2019 FILED BY THE PETITIONER
UNDER SECTION 151 OF CODE OF CIVIL PROCEDURE, 1908
VIDE ANNEXURE-E AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present writ petition is filed aggrieved by the order passed in an application filed by the petitioner under Section 151 CPC to recall the Judgment and decree dated 04.01.2019 on the ground that fraud has been committed by the other side.
2. The M.C.No.1860/2018 is filed seeking divorce. Thereafter the parties have filed a petition under Section 13-B of the Hindu Marriage Act for dissolution of marriage and said matter was referred to mediation and in the mediation they have resolved their disputes and certain other issues including alimony. Accordingly memorandum of settlement came to be executed. Both the parties have signed memorandum of settlement which was recorded by the Court on 04.01.2019. In terms of the settlement, the -3- NC: 2024:KHC:24973 WP No. 46678 of 2019 petition filed under Section 13-B of the Hindu Marriage Act, came to be allowed and marriage of the parties has been dissolved by granting a decree of divorce and accordingly a decree has been passed and a decree has been drawn in terms of settlement in the year 2019.
3. Now an application under Section 151 C.P.C is filed by the petitioner wherein the petitioner wanted to recall the Judgment and decree dated 04.01.2019 under the provisions of law. When the Court has observed that under Section 151 C.P.C. the said order cannot be recalled and the parties are at liberty to initiate separate proceedings if so advised, then questioning the same the petitioner had filed MFA No.5637/2019 and the Division Bench of this Court by order dated 23.09.2019 has dismissed the appeal as not maintainable and the petitioner cannot file an appeal before the Court seeking recall of the original decree of divorce since she has chosen a particular course of action it cannot be considered. After that the present writ petition is filed. -4-
NC: 2024:KHC:24973 WP No. 46678 of 2019
4. Learned counsel for the petitioner submits that the Court ought to have considered the application. The Family Court has its own procedure and as such only the provision of law is quoted wrong as Section 151 C.P.C., the Court ought to have considered it as an application filed under Order 23 Rule 3A C.P.C and ought to have considered the same.
5. Learned counsel for respondent submits that the Court has rightly held that under Section 151 C.P.C such an application is not maintainable.
6. Unfortunately in this case without filing a simple application under Order 23 Rule 3 right from the year 2019 to 2024, one after the other petitions are filed and matter is kept pending before this Court. When Court has categorically observed that serious allegations are raised with regard to fraud and other issues which are serious in nature and which requires a full fledged trial and asked the party to come up with an appropriate application, against that MFA is filed and now writ petition is filed. This Court -5- NC: 2024:KHC:24973 WP No. 46678 of 2019 is not able to understand what is the difficulty of the parties to file appropriate petition before the Court. The contention that the Family Court has its own procedure does not mean that it should give go by to all the procedures known to law. In the considered opinion of the Court, the Court below has rightly passed the order and this Court finds no reasons to interfere. Accordingly writ petition is dismissed.
All pending IA's, if any shall stand closed.
SD/-
JUDGE SBN List No.: 1 Sl No.: 17