Delhi High Court
M vs A on 6 May, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 06th May, 2019
+ C.R.P. 101/2016
M ..... Petitioner
Through: Mr. Ashish Sehrawat, Advocate
petitioner in person
versus
A ..... Respondent
Through: Mr. V. Shukla, Advocate
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The petitioner has challenged the order dated 29 th February, 2016
whereby the learned Family Court allowed the respondent to withdraw the
divorce petition with liberty to file a fresh petition on the same cause of
action subject to payment of cost of Rs.10,000/-.
2. The parties were married according to Hindu rites and ceremonies on
04th November, 2009 and they stayed together till 11th May, 2013. The
petitioner filed a complaint against the respondent in CAW Cell on 27th
May, 2013. The police registered FIR No. 617/2013 against the petitioner on
13th November, 2013 under Sections 498-A and 406 of Indian Penal Code.
3. On 24th July, 2013, the respondent filed a petition for restitution of
conjugal rites under Section 9 of the Hindu Marriage Act which was
withdrawn on 06th November, 2013.
4. On 05th September, 2013, the petitioner filed a petition for
maintenance and domestic violence against the respondent.
5. On 18th March, 2014, the respondent filed a petition for divorce on the
ground of cruelty under Section 13 (1) (ia) of the Hindu Marriage Act, 1955
in which the issues were framed on 09th February, 2015. The respondent
filed his evidence by way of affidavit on 29 th July, 2015 and his
examination-in-chief was recorded on 04th August, 2015.
6. On 10th November, 2015, the respondent filed an application under
Order XXIII Rule 1 of the Code of Civil Procedure for permission to
withdraw the petition with liberty to file a fresh petition on the ground that
the petition suffered from two formal defects of not giving dates of the
instances of cruelty and the date of withdrawal of the petitioner from the
society of the respondent. The respondent blamed his previous counsels for
these defects. The petitioner also mentioned that he wants to add the
instances of cruelty.
7. Vide order dated 29th February, 2016, the Family Court allowed the
application on the ground that the particulars of the cruelty with specific
dates have not been mentioned in the divorce petition which amounts to a
formal defect.
8. Learned counsel for the petitioner urged at the time of the hearing that
the respondent has raised false claims before the Family Court as well as this
Court. It is submitted that the respondent wants to build up an entirely new
case under the guise of removing formal defects.
9. Learned counsel for the respondent urged at the time of the hearing
that the respondent wants to cure the formal defects in the divorce petition
by giving the specific particulars of the cruelty.
10. Vide order dated 11th May, 2018, this Court directed the respondent to
produce the draft petition in respect of which the respondent had sought
liberty to consider whether the alleged defects sought to be cured were
formal in nature.
11. On 12th October, 2018, learned counsel for the respondent produced
the draft divorce petition proposed to be filed.
12. This Court has compared the draft divorce petition with the divorce
petition filed by the respondent. The draft petition filed by the respondent
reveals that the real intention of the respondent is to built up an entirely new
case. The respondent did not give any reason or justification as to why these
averments were not incorporated in the divorce petition. Unfortunately, the
learned Family Court did not consider this aspect. This Court is of the view
that the respondent has misled the Family Court as well as this Court.
13. This Court is of the view that the respondent cannot be allowed to
institute a fresh divorce petition to set up an entirely new case. The
respondent should have approached the learned Family Court for
amendment of the petition to incorporate the detailed particulars of the
instances of cruelty. The respondent is at liberty to seek amendment of the
divorce petition to incorporate the dates and particulars of the instances of
cruelty mentioned in the divorce petition.
14. The petition is allowed, impugned order dated 29th February, 2016 is
set aside and the petitioner's application under Order XXIII Rule 1 of Code
of Civil Procedure is dismissed.
15. The divorce petition of the respondent is restored. The parties shall
appear before the learned Family Court on 28th May, 2019 when the Family
Court shall fix the case for cross-examination of the respondent.
16. The Family Court is directed to expedite the divorce petition and
endeavour to decide the same within six months.
17. Learned Family Court shall not grant any unnecessary adjournments
to the parties.
J.R. MIDHA, J.
MAY 06, 2019
ds
