Gujarat High Court

Amrut Jamalbhai Sapra vs Jagrutiben W/O Amrut Jamalbhai Sapra ... on 7 July, 2025

Author: A.Y. Kogje

Bench: A.Y. Kogje

                                                                                                                  NEUTRAL CITATION




                             C/FA/2788/2024                                     JUDGMENT DATED: 07/07/2025

                                                                                                                  undefined




                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 2788 of 2024
                                                            With
                                         CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
                                                             In
                                               R/FIRST APPEAL NO. 2788 of 2024


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE A.Y. KOGJE                                   Sd/-

                       and

                       HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA                              Sd/-
                       ================================================================
                                    Approved for Reporting                      Yes           No

                       ================================================================
                                           AMRUT JAMALBHAI SAPRA
                                                    Versus
                             JAGRUTIBEN W/O AMRUT JAMALBHAI SAPRA D/O DHANJIBHAI
                                                 BHUVATRA
                       ================================================================
                       Appearance:
                       MR CB DASTOOR(238) for the Appellant(s) No. 1
                       MR.AKASH J PANDYA(7206) for the Defendant(s) No. 1
                       ================================================================

                          CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
                                and
                                HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA

                                                            Date : 07/07/2025

                                             ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. This appeal under Section 19 of the Family Courts Act

is filed against the judgment and order dated 01.06.2024 passed by

the Judge, Family Court No.7, Ahmedabad in Family Suit No.2273

NEUTRAL CITATION

C/FA/2788/2024 JUDGMENT DATED: 07/07/2025

undefined

of 2022.

2. The facts in brief are that the appellant got married

with the respondent as per the Hindu rites and customs on

12.06.2006 at Ahmedabad and whereby since the appellant and the

respondent were living together and enjoying their marital life. The

said marriage was registered before the Registrar of Marriages on

05.04.2013 at Juna Vadaj, Ahmedabad. Out of the said wedlock ,

the respondent gave birth to a child, named Nyasha.

2.1 The respondent started living separately from his

parents by purchasing a flat by obtaining a loan and is regularly

paying the loan installments. Even then on pity quarrel, the

respondent left the residence of the appellant for which the

appellant in the year 2017 had filed a petition of restitution of

conjugal rights u/s 9 of the Hindu Marriage Act and whereby the

settlement was arrived between the parties and the respondent

started to live with the appellant.

2.2 Again the respondent left the appellant's house and

filed maintenance application against the appellant u/s 125 of Code

of Criminal Procedure being Misc. Crim. Application No. 2064 of

2018. The respondent has also filed criminal complaint under

domestic violence act against the present appellant being Misc.

Crim. Application No. 2753 of 2018.

NEUTRAL CITATION

C/FA/2788/2024 JUDGMENT DATED: 07/07/2025

undefined

2.3 The respondent has deserted the appellant and filed

several criminal complaints against him therefore the appellant had

filed divorce petition u/s 13(1) of the Hindu Marriage Act being

HMP No.35 of 2018 before the Family court Ahmedabad whereby

the appellant advocate has filed a pursis at Exh. 24 for the

withdraw of the suit.

2.4 The appellant had again filed the Family Suit No.2273

of 2022 before the Family Court, Ahmedabad for dissolution of

Marriage u/s 13(1) of the Hindu Marriage Act, whereby the Family

Court rejected the suit of the appellant.

3. Learned Advocate for the appellant submitted that the

Family Court has materially erred in rejecting the suit of the

appellant on the ground of the principles of Res-Judicata. As such,

the earlier suit was not adjudicated on merits.

3.1 It is submitted that the technical drawback should not

restrain the litigants from asserting their rights and getting the

dispute adjudicated by appropriate judicial proceeding and that no-

one can be non suited purely on technical ground. It is submitted

that earlier the suit was filed for dissolution of marriage by the

appellant, however, at the very initial stage of proceedings the suit

was withdrawn on misleading statements/advise of the appellant

advocate that the suit is barred u/s 2(2) of the Hindu Marriage Act.

NEUTRAL CITATION

C/FA/2788/2024 JUDGMENT DATED: 07/07/2025

undefined

3.2 It is submitted that the Family Court has erred in not

appreciating the fact that both the parties have married as per the

Hindu rites and Customs and the same marriage is also registered

and therefore, though both parties belong to scheduled tribe, even

then the provisions of Section 2 (2) of the Hindu Marriage Act is

not applicable to present case.

3.3 It is submitted that the fact that earlier the appellant

husband has filed the conjugal petition u/s 9 of Hindu Marriage Act

before the Family Court at Ahmedabad whereby no objection was

made at that time by the other side and settlement was made

between the parties.

4. Learned Advocate for the respondent-wife submitted

that the judgment of the Family Court is justified as admittedly,

both the parties belong to scheduled tribe and therefore, the

provisions of the Hindu Marriage Act would not apply.

5. It is also submitted that a previous Family Suit filed by

the appellant was filed on the said ground. The respondent-wife

objected to the same on the very ground and therefore, the

appellant withdrew the suit. Therefore, the present suit again on

the same ground is rightly held barred by principles of res judicata.

6. Having heard learned Advocates for the parties and

NEUTRAL CITATION

C/FA/2788/2024 JUDGMENT DATED: 07/07/2025

undefined

having perused documents on record, it appears that the issue

involved is of rejection of the Family Suit as being barred by law as

the application of the respondent under O-7, R-11 came to be

allowed and suit came to be dismissed summarily. The paper book

is already submitted. Hence, with consent, the appeal is taken up

for final hearing.

7. The Court may take up the first issue regarding res

judicata. This contention raised by learned Advocate for the

respondent-wife and accepted by the Family Court is based on the

fact that the previous proceeding being HMP No.35 of 2018 was

under Section 13(1) of the Hindu Marriage Act. Though it is the

case of the respondent-wife that she filed reply, raising contention

of maintainability, however, on record, what is available is Exh.24,

a pursis for withdrawal. In Exh.24, it is stated that the Hindu

Marriage Petition was filed under a mistake, therefore sought

withdrawal and based on such pursis Exh.24, the petition was

disposed of.

8. The Court is of the view that as the disposal of the

previous Family Suit was on the basis of withdrawal pursis, there

was no adjudication and withdrawal was permitted simplicitor.

Moreover, there is nothing to support the wife's contention that the

withdrawal pursis was filed by the husband only after the wife

raised contention of maintainability. Even if it so be, the order of

NEUTRAL CITATION

C/FA/2788/2024 JUDGMENT DATED: 07/07/2025

undefined

the Family Court was only on withdrawal pursis, without

adjudication and therefore, will not attract Section 11 of the Code

of Civil Procedure. The requirement to attract Section 11

(principle of res judicata), the matter is to be directly and

substantially in issue and such issue is heard and finally decided by

such Court. In the facts of this case, there is no final decision on

the issue of maintainability of the suit on the ground of barred by a

law.

9. The second issue is objection to maintainability raised

by the respondent-wife by filing an application below O-7, R-11

contending that as the party is belonging to scheduled tribe, the

provisions of the Hindu Marriage Act will not apply. Hence, Family

Suit under Section 13 of the Hindu Marriage Act cannot be

maintained. However, for the purpose of O-7, R-11, the relevant is

the averment made in the plaint.

10. The Apex Court in case of P.V.Guru Raj Reddy & Anr.

Vs. P.Neeradha Reddy & Ors., reported in (2015) 8 SCC, 331,

in para-5 has held as under:-

"5. Rejection of the plaint under Order VII rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently

NEUTRAL CITATION

C/FA/2788/2024 JUDGMENT DATED: 07/07/2025

undefined

held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial."

11. The Court has perused the pleadings in the form of

plaint under Section 13(1) of the Hindu Marriage Act and nowhere

it is mentioned that the appellant-husband and wife belong to

scheduled tribe, but in fact, in the plaint, it is stated that both

husband and wife have been married as per the Hindu rites and

rituals and following Hindu religion and it is the case of the

respondent-wife that they both belong to scheduled tribe and

therefore, in the opinion of the Court, the issue is triable and has to

be adjudicated on the basis of evidence that may be led during a

trial.

12. In the facts of the present case, there is no issue

framed as to whether the parties belong to scheduled tribe and that