Madras High Court
Hamenth Williams vs J.Priya Phyllis on 28 June, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON :17.02.2022
PRONOUNCED ON :15.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
C.M.A(MD)No.988 of 2021
Hamenth Williams :Appellant/Petitioner/Petitioner
.vs.
1.J.Priya Phyllis
2.C.Surya : Respondents/Respondents/Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 55 of the
Indian Divorce Act against the fair and decretal order passed in
I.A.No.1 of 2019 in D.O.P.No.186 of 2011, dated 28.06.2021, on the
file of the Principal District Judge, Kanyakumari at Nagercoil.
For Appellant :Mr.D.Saravanan
For Respondent-1 :Mr.R.Murugan
For Respondent-2 :No appearance
JUDGMENT
*************
The husband is the appellant herein. This Civil Miscellaneous
Appeal is filed against the order passed in I.A.No.1 of 2019 in
https://www.mhc.tn.gov.in/judis
D.O.P.No.186 of 2011, dated 28.06.2021, on the file of the Principal
District Judge, Kanyakumari at Nagercoil.
2.The brief facts of the case are that:
The Petitioner husband filed a Divorce Petition before the
Principal District Judge, Kanyakumari at Nagercoil, for dissolution
of marriage solemnized between the Petitioner and the respondent
which took place on 22.05.1998 at Colachel CSI Church.
''2.....The marriage between the Petitioner and
the respondent took place on 22.05.1998 at Colachel
CSI Church. As per Christian rites and rituals and
due to the wedlock, the Petitioner has blessed with
one male child namely, H.Zepinth williams, aged
about 22 years. The first respondent indulged in
illicit relationship with the second respondent. The
Petitioner filed a petition for divorce on the ground
of adultery and cruelty. The same was numbered as
I.D.O.P.No.186 of 2011.The first respondent filed an
I.A seeking interim alimony from the Petitioner in
I.A.No.167 of 2014, the same was dismissed on
27.02.2017,against which, C.M.A.No.856 of 2017
filed before the Honourable Court. The said C.M.A
was dismissed on 12.10.2017on the said terms that
the first respondent was willing to give up her claim
https://www.mhc.tn.gov.in/judis
for maintenance and agree to file a consent petition
for divorce. Thereafter, the appellant issued notice
through his counsel on 20.01.2018 along with
Vakalath mutual consent divorce petition. Curiously,
the respondent herein withdraw her promise and
placed several arbitrary conditions to revoke her
promise through the reply sent by her counsel on
08.02.2018.
''3..................The appellant once again filed an
I.A in support of the order passed in Review
Appl(MD)No.116 of 2019, dated 5.7.2019. The same
was numbered as I.A.No.1 of 2019 in I.D.O.P.No.186
of 2011..........''.
Hence the present Civil Miscellaneous Appeal.
3.The learned counsel for the appellant would contend that
the impugned order passed by the Principal District
Judge,Kanyakumari at Nagercoil is without application of mind and
ought to have re-opened the D.O.P.No.186 of 2011.
4.The Lower Court records reveal that the appellant husband
has filed D.O.P.No.186 of 2011 for divorce on the ground of
adultery. Pending the same, the respondent/wife had filed I.A.No.
https://www.mhc.tn.gov.in/judis
167 of 2014 seeking interim maintenance and litigation expenses.
By an order, dated 27.02.2017, the said application was dismissed.
Hence the respondent/wife filed C.M.A(MD)No.856 of 2017. It
appears that based upon the representation given by both the
parties, the Civil Miscellaneous Appeal is closed, with liberty to file
petition for divorce by mutual consent under Section 10-A of the
Indian Divorce Act. It appears from the record that the
Petitioner/husband made not pressed endorsement in the said
D.O.P.No.186 of 2011. Accordingly, the said Divorce Petition is
dismissed as not pressed.
5.The grievance of the appellant husband is that after the
said petition, when he has preferred a petition for divorce by
mutual consent, his wife has not co-operated for filing the mutual
consent petition, necessitating the filing of the present application,
which is impugned herein, for re-opening the main divorce O.P.
6.In the counter affidavit filed before the trial Court, the first
respondent/wife has stated that the promise made for return of
articles,jewels and cash were not complied with and hence, she is
not willing to file a consent divorce petition.
https://www.mhc.tn.gov.in/judis
7.The learned Principal District Judge, Kanyakumari at
Nagercoil, after perusing the factual position, as reflected in the
records, has held that the contention of the appellant/husband
that the main divorce O.P was closed as not pressed, is factually
wrong and as per the original records, the main divorce O.P was
dismissed as not pressed, in view of the endorsement made by the
learned counsel for the Petitioner.
8.Once the petition is dismissed as not pressed, the same
cannot be re-opened again and based upon the above principle, the
Principal District Judge, Kanyakumari at Nagercoil, had rightly
rejected the application and the reasons assigned by the learned
Principal District Judge cannot be found fault with and hence the
Civil Miscellaneous Appeal is devoid of merits and accordingly, the
same stands dismissed. No costs.
15.03.2022
Index:Yes/No
Internet:Yes/No
vsn
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of
the order may be utilized
https://www.mhc.tn.gov.in/judis
for official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall be
the responsibility of the
advocate / litigant
concerned.
To
1.The Principal District Judge,
Kanyakumari at Nagercoil.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
RMT.TEEKAA RAMAN.,J.
vsn
PRE-DELIVERY JUDGMENT MADE IN
C.M.A(MD)No.988 of 2021
15.03.2022
https://www.mhc.tn.gov.in/judis
