Kerala High Court
Praise Mon vs Rinu Jose on 7 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943
OP (FC).No.142 OF 2021
AGAINST THE ORDER IN IA 1/2021 IN OP 120/2018 DATED 28-01-2021
OF FAMILY COURT, KALPETTA, WAYANAD
PETITIONER/PETITIONER:
PRAISE MON
AGED 35 YEARS
S/O. PAILY, PULIKKAL HOUSE,
RAJAKUMARI POST, UDUMBANCHOLA, IDUKKI.
BY ADVS.
SRI.JIKKU SEBAN GEORGE
SMT.DEEPTI SUSAN GEORGE
SHRI.P.D.SAJI
RESPONDENT/RESPONDENT:
RINU JOSE,
W/O. PRAISE MON, MANKUDI HOUSE,
BOOTHANAM COLONY, PULPALLY,
WAYANAD DISTRICT - 673579.
R1 BY ADV. SRI.P.MOHAMED SABAH
R1 BY ADV. SMT.SAIPOOJA
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 7-04-
2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(FC) No.142/2021
-:2:-
J U D G M E N T
Dated this the 7th day of April, 2021
Dr.Kauser Edappagath, J.
Ext.P7 order passed by the court below dismissing a petition
(Ext.P6) filed by the petitioner seeking to withdraw the Original
Petition with liberty to file fresh petition invoking Order XXIII Rule
3 of CPC is under challenge in this original petition.
2. The petitioner and the respondent are husband and
wife. The petitioner filed original petition seeking divorce before
the court below on the ground of cruelty. The respondent entered
appearance and filed counter statement. During the pendency of
the original petition, the petitioner preferred Ext.P6 petition
before the court below seeking to withdraw the original petition
with liberty to file a fresh petition. It was alleged that since the
institution of the original petition in 2017, there has been change
of circumstances and that further cause of action has arisen. The
respondent opposed the said petition. The court below after
hearing both sides passed the impugned order dismissing the
petition. The said order has been challenged in this original
OP(FC) No.142/2021
petition.
3. We heard both sides.
4. The dissolution of marriage has been sought on the
ground of cruelty. The various acts of cruelties have been stated
in the original petition. It is specifically alleged that the
respondent left the matrimonial home on 5/7/2016 and thereafter
she did not come back. The original petition was filed before the
court below in the year 2017. According to the petitioner, even
after a lapse of four and a half years, the respondent did not
return to the matrimonial home and this will amount to desertion
attracting S.10(ix) of the Indian Divorce Act. The petitioner wants
to seek divorce on the said ground as well. It is also alleged that
the petitioner has failed to incorporate some pleadings with
regard to cruelty in the original petition. It was in these
circumstances the petition has been filed to withdraw the original
petition with liberty to file a fresh petition in respect to the same
subject matter. As per Order XXIII Rule 3 of CPC, permission can
be granted to withdraw the suit with liberty to institute a fresh
suit for the same subject matter if the court is satisfied that the
suit must fail by the reason of some formal defect or that there
OP(FC) No.142/2021
are sufficient grounds for allowing the plaintiff to institute a fresh
suit for the subject matter of the suit or part of the claim. It is
specifically averred that even after the institution of the original
petition, the desertion continued. No prejudice will be caused if
the permission sought for is granted. The petitioner wants to file
a fresh original petition on the same subject matter and not on
entirely different allegations. Considering all these aspects, we
hold that the court below ought to have granted the permission
sought for. The court below committed illegality in not granting
permission to the petitioner to withdraw the original petition with
liberty to institute a fresh original petition on the same subject
matter. Hence, Ext.P7 is liable to be set aside.
In the result, original petition is allowed. Ext.P7 is set aside.
Ext.P6 stands allowed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
Rp JUDGE
OP(FC) No.142/2021
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WP(CRL)
21/2017 DATED 24.01.2017.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN TR.P.C NO.
262/2017 DATED 25.01.2018.
EXHIBIT P3 TRUE COPY OF THE ORDER IN RP(FC)
332/2019 DATED 06.12.2019.
EXHIBIT P4 TRUE COPY OF INTERIM ORDER IN RP(FC)
47/2021 DATED 12.02.2021.
EXHIBIT P5 TRUE COPY OF THE A DIARY AS OBTAINED
FROM THE E COURTS- OFFICIAL WEBSITE OF
THE DISTRICT COURT.
EXHIBIT P6 CERTIFIED COPY OF THE INTERLOCUTORY
APPLICATION, I.A NO.1/2021 DATED
23.11.2020.
EXHIBIT P7 CERTIFIED COPY OF THE ORDER DATED
28.01.2021 IN IA NO.1/2021 IN OP
120/2018.
