Shri. Prashil S/O. Sudhakarrao ... vs Sau. Vishakha W/O. Prashil ...
2017 Latest Caselaw 1552 Bom

                                                                                                              fca.44.16

                                                            1



                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT NAGPUR, NAGPUR.
                                            ...

FAMILY COURT APPEAL NO.44/2016

Prashil s/o Sudhakarrao Nagpure Age - 36 years, Occu: private R/o Trimurtinagar Near Gajanan Mandir, Nagpur (MS) ..APPELLANT

v e r s u s

Sau. Vishakha w/o Prashil Nagpure @ Ku. Vishakha Haridas Meshram Aged about 36 years, Legal practitioner R/o Bhagi-Hari villa circle No.17/23, Lashkaribagh Kamal Square, Nagpur-17. ..RESPONDENT

...........................................................................................................................

Mr. S.S. Dhengale, Advocate for the petitioner Mr. A.M.Ghare, Advocate for the respondent ...........................................................................................................................

                                                    CORAM:    SMT. VASANTI  A. NAIK &
                                                                   MRS . SWAPNA JOSHI, JJ
                                                                                         . 
                                                    DATED :       10  April, 2017
                                                                    th




ORAL JUDGMENT:  (PER MRS.SWAPNA JOSHI, J.)

1. Admit. Heard finally with the consent of the respective parties.

2. The appellant-husband has preferred the instant Family Court Appeal

under section 19 of the Family Court Act against the order dated 14.01.2016

passed by the learned Judge of the Family Court, Nagpur in Petition No.

A-516/2013 thereby allowing the application filed by the respondent-wife

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for dismissal of the petition, filed by the petitioner-husband.

3. The appellant-husband had filed the petition under Section 25(i) and

(iii) of the Special Marriage Act, 1954 for declaration of marriage certificate

and marriage between the appellant-husband and respondent-wife as null and

void.

4. Brief facts leading to filing the instant Appeal are these:

Earlier, the appellant-husband had filed a petition bearing Petition

No.A-312/2013 u/s. 25 (i) and(iii) of the Special Marriage Act, based on the

facts and circumstances prevailing on that date. Thereafter, respondent-wife

filed an Application u/s. 12 of the Domestic Violence Act, on 25.04.2013. On

21.05.2013, the appellant-husband withdrew the said petition bearing No.

A-312/2013 unconditionally. The appellant then filed petition No. A-516/2013

in Family Court which came to be dismissed on 14.01.2016. The said order is

impugned in the present Appeal.

5. Mr. S.S. Dhengale, the learned counsel for the appellant contended that

the appellant had earlier filed petition No. A-312/2013 on the basis of the

facts prevailing on that day. The said petition was filed for non-consummation

of marriage. However, as the respondent-wife filed an application under

Domestic Violence Act during the pendency of the said petition, making

different allegations, the appellant withdrew the said petition and filed a

separate petition i.e. A-516/2013 countering the allegations of domestic

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violence, as the wife had filed an application under the Domestic Violence

Act.

6. According to the learned counsel for the appellant the petition No.

A-312/2013 was on different facts, wheres petition No. A. 516/2013 is on a

totally different footing and different cause of action. It is stated that the

learned Judge of the Family Court has erroneously dismissed the said petition.

7. Mr. Ghare, the learned counsel for the respondent-wife submitted that

the learned Judge of the Family Court has rightly passed the order dismissing

the petition filed by the appellant-husband. He supported the said order.

8. On hearing both the sides and on a perusal of of record, the following

points arise for our consideration :

(i) Whether the order passed by the learned Judge of the Family Court is proper?

        (ii)    What order?
                                               REASONS

9. According to the appellant, he had withdrawn the earlier petition i.e.

Petition No. A.312/2013 as he was desirous to add certain circumstances

meeting the allegations of the wife under the Domestic Violence Act, made by

way of filing an application u/s 12 of the said Act against him. However,

significantly, the appellant, on his own, withdrew the petition No. A.312/2013

unconditionally. The appellant had filed the petition no. A.312/2013 stating

that the marriage is null and void on the ground of non-consummation of

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marriage and that his consent for marriage was obtained by coercion and

fraud i.e. the grounds available at the time of marriage and immediately

after the marriage. Those facts were not concerned with the facts, much less

after the marriage particularly on the ground of cruelty.

10. In our considered opinion, the subsequent events are certainly not

material change in the circumstances for which the second petition is filed. For

filing the second petition, there is no material change in circumstances as

such. The appellant has himself withdrawn the petition without seeking

permission to file fresh petition.

11. The learned counsel for the appellant placed reliance upon the

following case-laws :-

(i) Surajsingh vs. Smt.jasbir Kaur and others: 2008 (1) AIR Bom R 664,

(ii) Shantaram Shinde and others vs. Eknath Shinde: 2009 (3) Mh.L.J.851,

(iii) Dharam Chand and others vs. Jogeshwar and others: AIR 2009 Raj.70,

(iv) Dr G. Sankara Vadivoo vs. S.Palavannam: AIR 2013 Madras 181,

(v) Manoj M. Pate vs. Sou.Vijaya w/o Manoj Pate : 2014 (5) AIR 142,

The aforesaid authorities are not applicable to the facts and

circumstances of the present case. Those authorities are on the ground that

the new cause of action permits filing the subsequent petition though the first

petition is withdrawn without giving liberty to file a fresh petition. Hence, the

ratio in the above-referred case laws is not applicable.

12. The learned counsel for the appellant further placed reliance upon the

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judgment in the case of Manoj Pate vs Sou.Vijaya Pate, reported in 2014 (5)

ABR 142, wherein it has been held that a second petition on the same facts

and on the same cause of action that accrued to a party on the date of

institution of the suit or proceeding is not maintainable in view of the clear

provisions of Order XXIII, Rule 1(4) of the Civil Procedure Code, if the suit or

proceeding is withdrawn without seeking leave of the Court.

13. In the case cited supra, there was fresh cause of action whereas, it is

clear that there is no fresh cause of action here. As such, this case law is not

applicable to the present case.

14. Since the first petition was not for cruelty, the subsequent events

showing the instances of cruelty are not material change in the circumstances

for filing new petition. Since the appellant has come up with the case of

declaring his marriage as null and void, claiming that the marriage took place

by fraud, the subsequent events under the Domestic Violence Act would not

give a separate cause of action to the appellant as those grounds were already

available to the appellant while filing the first petition.

15. Since the appellant has withdrawn the first petition without seeking

permission to file a fresh petition and as there is no cause of action for filing

the second petition as it is for nullity of marriage, there is no ground for the

appellant to file the subsequent petition claiming that there is a change in the

circumstances. In our considered view, the petition is not maintainable under

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Rule XXIII sub-rule (1) (4) of the Civil Procedure Code. No interference is

called for in the order passed by the learned Judge of the Family Court.

Hence, the Appeal is liable to be dismissed and the same is dismissed. No

costs.

                        JUDGE                             JUDGE
sahare