Delhi High Court
Anjali Chattopadhyay Goswami vs Utpal Goswami on 16 October, 2012
Author: Veena Birbal
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1145/2012
ANJALI CHATTOPADHYAY GOSWAMI ..... Petitioner
Through : Mr. S.K. Bhattacharya, Adv. along with
petitioner in person
versus
UTPAL GOSWAMI ..... Respondent
Through : None
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J (oral)
*
CM 17955/2012 (for exemption)
Exemption allowed subject to all just exceptions.
Application stands disposed of.
CM(M) 1145/2012
1. By way of this petition under Article 227 of the Constitution of India, a
challenge has been made to the order dated 8 th February, 2012 and 3rd
September, 2012. By the order dated 8th February, 2012, the learned Addl.
District Judge has allowed the respondent/husband to withdraw H.M.A. case
no.105/2006 and by subsequent order dated 3rd September, 2012, the
application of the petitioner/wife for recalling of the order dated 8 th February,
2012 has been dismissed.
CM(M) 1145/2012 Page 1 of page 4
2. A divorce petition was filed by the respondent/husband against the
appellant/wife under section 13 of the Hindu Marriage Act which was pending
consideration before the learned trial court for some time. The petitioner/wife
contested the said petition for sometime. On 7th February, 2012,
respondent/husband had moved an application under Order 23 Rule 1 CPC for
withdrawal of the said petition on the ground that he would like to file the
petition in U.K. court. The said application was allowed on 8 th February, 2012
after recording his statement. Thereafter, petitioner/wife moved an application
for recalling of the said order on the ground that no notice was served and the
application was malafide. Thereafter, vide impugned order dated 3 rd
September, 2012, the learned trial court had upheld the order of withdrawal of
divorce petition. However, the learned trial court had modified the said order
to the extent that the maintenance application of the petitioner/wife under
section 24 of the HMA and the application for perjury against Mr.D.N.Ray had
been separated from the main petition and ordered to be registered as
miscellaneous applications.
3. The grievance of the petitioner/wife is that the learned trial court ought
not have allowed withdrawal of the divorce petition. Learned counsel for the
appellant has contended that it was a conditional withdrawal and there was no
intention to abandon the suit, as such, same ought not have been allowed by the
learned trial court.
4. I have considered the submissions made. The order by which
withdrawal has been allowed is as under:-
"File taken up on application for withdrawal of the petition
CM(M) 1145/2012 Page 2 of page 4
filed by the petitioner.
Present: Petitioner in person with counsel Sh.P.Banerjee.
None for respondent.
It is submitted by the petitioner that he wants to
withdraw the present petition as he wants to file the same in
the appropriate courts in United Kingdom. Let statement of
petitioner be recorded.
Statement of petitioner recorded on separate sheet who
has been duly identified by his counsel. The present petition
is dismissed as withdrawn. File be consigned to record room.
Date of 02.04.2012 stands cancelled.
Announced in open court Sudesh Kumar
On 08.02.2012 Addl District Judge-02(Central)
Tis Hazari Courts/Delhi"
5. The findings of the learned trial court on the application for recalling of
the order dated 3.9.2012 is as under:-
"In the order dated 08.02.2012, the petition of the
petitioner was simply dismissed as withdrawn and no
permission has been granted to the petitioner to file fresh
suit on the same cause of action. As such, if the
petitioner has been permitted to withdraw the petition, no
prejudice has been caused to the respondent/applicant as
no permission has been granted to the petitioner to fule
fresh suit on the same cause of action. The petitioner is
the master of his own case. He cannot be compelled to
CM(M) 1145/2012 Page 3 of page 4
continue with the proceedings, if he does not want to
continue with the proceedings. The petitioner can
withdraw his petition at any time."
6. The learned trial court has rightly observed that respondent/husband
cannot be compelled to continue with the proceedings if he intends to withdraw
the same. Vide order dated 8th February, 2012, respondent/husband has been
permitted to withdraw the divorce petition. No permission has been granted by
the learned trial court to him to file a fresh suit on the same cause of action.
Respondent/husband cannot be stopped from pursuing other remedies, if any,
available to him in accordance with law. The impugned order is not
prejudicial to the petitioner/wife in any manner, inasmuch as the court has
modified the order dated 8th February, 2012 and the maintenance application
u/s 24 of the HMA and another application for perjury against Mr.D.N.Ray
which was pending in the divorce petition have been separated from the main
file and ordered to be registered as miscellaneous applications.
7. In view of the above, no illegality is seen in the impugned orders which
calls for interference on this court under Article 227 of the Constitution of
India. Petition stands dismissed.
VEENA BIRBAL, J
OCTOBER 16, 2012
ssb
CM(M) 1145/2012 Page 4 of page 4
