Calcutta High Court (Appellete Side)
Nucleus Paul vs Mridula Barman on 10 June, 2021
10.06.2021
TN
CO No.644 of 2021
(Via video conference)
Nucleus Paul
Vs.
Mridula Barman
Mr. Bratin Kumar Dey
.... for the petitioner
The petitioner-husband has challenged an
order dated December 9, 2020 passed by the
Additional District Judge, 12th Court at Alipore (in
charge of 15th ADJ, Alipore), whereby the opposite
party-wife was permitted to withdraw her suit for
divorce with liberty to file afresh.
Learned counsel for the petitioner submits
that the petitioner had taken out an application for
visitation rights to the child of the parties which,
being refused, the petitioner-husband moved a
revisional application bearing CO No.1121 of 2020.
By referring to an order dated June 5, 2020 passed
by a co-ordinate Bench in connection with the said
revision, learned counsel points out that an interim
arrangement of visitation by the petitioner
regarding the child was granted by this court. By
withdrawing the suit with liberty to sue afresh, the
opposite party is trying to curtail such accrued
right of the petitioner by virtue of the said order.
That apart, it is argued that the suit was
permitted to be withdrawn without notice to the
petitioner, upon a put-up petition being filed by the
opposite party-wife, and the impugned order was
passed behind the back of the petitioner.
Learned counsel further submits, by placing
reliance on a judgment of the Andhra Pradesh High
Court reported at AIR 2009 AP 12, that satisfaction
of the court regarding the ingredients of Order XXIII
Rule 1(3) of the Code of Civil Procedure has to be
recorded in the order. A suit cannot be permitted to
be withdrawn, it is submitted, merely for the
asking, without ascertaining whether there was any
actual defect in the plaint and/or there was
sufficient reason to grant liberty to sue afresh.
However, it appears from the impugned order
that the courts specifically recorded the submission
of learned counsel for the opposite party-wife to the
effect that there were certain typographical errors
and mistakes in the application under Section
27(1)(d) of the Special Marriage Act filed by the
opposite party-wife and, upon hearing counsel, was
pleased to allow such prayer. Detailed recording of
such satisfaction as contemplated under Order
XXIII Rule 1(3) of the Code is not integral to such
an order. Moreover, no case has been decided by
the impugned order.
That apart, no prejudice is suffered by the
petitioner-husband due to such withdrawal with
liberty to file afresh, since the trial court had
refused his prayer for interim visitation, against
which a revisional application is pending. Such
refusal by the trial court and the ad hoc
arrangement made in the revisional application for
visitation cannot be construed to have conferred an
accrued 'right' to the petitioner sufficient to vitiate
the impugned order.
Moreover, the recording of the submissions of
learned counsel for the opposite party-wife by the
trial court and subsequent allowing of the prayer
pre-supposes the satisfaction of the trial court on
the ingredients of Order XXIII Rule 1(3) of the Code.
Non-recording of detailed reasons in an order of
such nature does not, ipso facto, vitiate such an
order.
That apart, the ad hoc arrangement made by
virtue of the interim order dated June 5, 2020
passed in CO No.1121 of 2020 is not directly
affected by the withdrawal of the suit, unless the
revisional application is dismissed as infructuous
formally by the court.
Neither the interim order of refusal of the
visitation right to the petitioner passed by the trial
court, nor the ad hoc arrangement made by virtue
of the order of the co-ordinate Bench are of a final
nature but were both tentative in nature and do not
curtail/confer permanently any right of the
petitioner-husband regarding visitation of the child.
Hence, there is no scope of interference with
the impugned order. Accordingly, CO No.644 of
2021 is dismissed.
However, it is made clear that the withdrawal
of Matrimonial Suit No.2437 of 2019 by the
opposite party shall not prejudice the rights
otherwise available to the petitioner in law to make
a fresh prayer for visitation in the new suit filed by
the opposite party and/or the suit for restitution of
conjugal rights already pending at the behest of the
petitioner-husband, as submitted by learned
counsel.
That apart, neither this order nor the order
impugned herein shall operate to cancel the ad hoc
arrangement made in the order dated June 5, 2020
till disposal of the said revisional application, that
is, CO No.1121 of 2020, and shall be subject to any
final order passed therein.
Urgent photostat certified copies of this order, if
applied for, be made available to the parties upon
compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)
