Karnataka High Court
Sri Girish T N vs Smt Sowmya V on 3 June, 2022
Bench: Alok Aradhe, J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M. KHAZI
M.F.A. NO.6254 OF 2021 (GW)
BETWEEN:
SRI. GIRISH T.N.
S/O NAGABUSHANA
AGED ABOUT 45 YEARS
R/AT. FLAT NO.G-003
SRI PEARL PARK APARTMENT
8/35, DUBASI PALY
KENGERI SATELLITE TOWN
BENGALURU, KARNATAKA 560056.
ALSO RESIDING AT
NO.4691, PRAMATHA G BLOCK
4TH CROSS 3RD STAGE, DATTAGALLI
OPP. ROTARY SCHOOL
KANAKADASANAGARA
MYSURU 570023
MOBILE NO.9886640656
Email I.D. - [email protected]
... APPELLANT
(BY MR. SHIVARAJ N. ARALI, ADV.,)
AND:
SMT. SOWMYA V
W/O GIRISH T.N.
D/O LATE VIJAYENDRA KUMAR H.R.
C/O SMT. SHASHIKALA
2
R/AT. NO.212, SRI. SUMUKHA
SMILEY GREEN, OPP. BALDWIN HIGH SCHOOL
BENGALURU-560098
MOBIL NO.9731399019/9886640929.
ALSO AT:
C/O SMT. SHASHIKALA
MATRUSHREE, NANJANGUD
T. NARSIPURA ROAD, NEXT TO SARVAJANIKA HOSTEL
T.NARSIPURA TOWN, MYSORE DISTRICT 571124
MOBILE NO.9845281329/9886904256
Email I.D. [email protected]
... RESPONDENT
(V/O DTD:19.04.2022 SERVICE OF NOTICE IN R/O
RESPONDENT H/S
SMT. SOWMYA V SERVED)
---
THIS MFA IS FILED UNDER SECTION 47 OF GUARDIANS
AND WARDS ACT, PRYING TO SET ASIDE THE IMPUGNED ORDER
DATED 18.10.2021 ON I.A.NO.6 PASSED IN G AND WC NO.
164/2020 ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE,
FAMILY COURT, BENGALURU.
THIS M.F.A. COMING ON FOR HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
Mr.Shivaraj N.Arali, learned counsel for the appellant.
None for the respondent though served.
Heard on the question of admission.
In this appeal, the appellant has assailed the validity of
the order dated 18.10.2021 passed by the Family Court by
which the petition filed by the appellant under Section 25 of
the Guardian and Wards Act, 1890 (hereinafter referred to as
'the Act' for short) has been held to be not maintainable and
the same has been dismissed. The marriage between the
parties was performed on 12.06.2005 and thereafter, a girl
child was born to them on 24.12.2010 namely Rachetha.
Thereafter, the appellant initiated a proceeding under Section
30 of the Hindu Marriage Act, 1955 in which a compromise
petition is filed by the parties under Order 23 Rule 3 of the
Code of Civil Procedure, 1908. Clause 2 of the compromise
petition contained stipulation to which appellant had agreed
that the custody of the child namely Rachetha will be with
the respondent only. Thereafter, on the basis of the
compromise arrived at between the parties, the Family Court
by judgment and decree dated 30.10.2019, disposed of the
petition filed by the appellant in terms of the compromise
arrived at between the parties. Thereafter in the month of
September 2020, the appellant filed a petition under Section
25 of the Act seeking custody of the child. The Family Court
vide impugned order inter alia held that subsequent
proceedings initiated by the appellant were barred under
Order 23 Rule 3A of the CPC. Learned counsel for the
appellant submitted that the proceedings under Section 25 of
the Act was initiated by the appellant on the basis of events
subsequent to the passing of the decree dated 30.10.2019.
2. We have considered the submissions made on both
sides and have perused the record. Paragraph 24 of the
petition is extracted below for the facility of reference:
"The petitioner further submits that, the cause
of action for the petition arose on 12.06.2005
when the marriage of the petitioner with the
Respondent took place and also when the child
was born on 24.12.2010. Further cause of
action is on the date of Divorce in MC
No.418/2019 dated 30.10.2019 which was held
by The III Additional Family Court, Mysuru. The
Respondent has since then only met the child
sometimes and the last was on March 2020 and
ever since then the Respondent has not allowed
the child to meet the Petitioner. That the cause
of action is recurring and continuous."
Thus, on perusal of paragraph 24 in its entirety, it is
evident that the appellant has not pleaded that the cause of
action as arisen subsequent to dissolution of marriage by the
Family Court on the basis of compromise arrived at between
the parties.
3. It is trite law that a litigant cannot be permitted to
initiate a proceeding twice on the same cause of action.
However, in the facts and circumstances of the case, the
appellant is granted liberty to initiate proceeding under
Section 25 of the Act on the basis of the cause of action
which may have accrued to the appellant subsequent to the
passing of the judgment and decree dated 30.10.2019
passed with consent of the parties.
With the aforesaid liberty, the appeal is disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
RV
