Madras High Court
Kalyana Soundari vs Vijaya Baskar on 4 April, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.04.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
C.R.P.NPD.No.4129 of 2017
and
C.M.P.Nos.19358 & 19359 of 2017
Kalyana Soundari
... Petitioner
Vs.
1.Vijaya Baskar
2.S.Palani
3.P.Thanigainayagi
4.Kumari
...Respondents
Civil Revision Petition filed under Article 227 of Constitution of India,
to set aside the order dated 18.07.2017 passed in I.A.No.169 of 2015 in
O.P.No.198 of 2014 on the file of the Family Court, Thiruvallur.
For Petitioner .. Mr.R.Srinivas
For Respondents .. Mr.M.Balasubramanian
https://www.mhc.tn.gov.in/judis
2
ORDER
The revision petitioner is aggrieved by an order dated 18.07.2017
in I.A.No.169 of 2015 in HMOP No.198 of 2014 passed by the Family
Court, Thiruvallur.
2.The revision petitioner is the wife. The 1st respondent is the
husband and the 2nd, 3rd and 4th respondents are other family members of
the husband.
3.Let me term the revision petitioner as the wife and the 1st
respondent as the husband for the sake of convenience.
4.The husband and the wife appear to have formally engaged
themselves in a judicial lis pertaining to their martial disputes for at least
17 years as on date.
5.The husband originally filed HMOP No.76 of 2003 seeking a
declaration that the marriage solemnized between himself and the wife
must be declared a nullity on the ground of impotency.
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6.For good measure the wife filed HMOP No.25 of 2005 seeking
restitution of conjugal rights.
7.Both the matrimonial Original Petitions were taken up together
and a common judgment was passed on 22.02.2011 by the learned
Additional District Judge / Fast Track Court No.III, Thiruvallur.
8.Finally after examining the pleadings and the evidence,
HMOP.No.76 of 2003 filed by the husband was dismissed and HMOP
No.25 of 2005 filed by the wife was allowed. This implied that the
marital relationship continued and subsisted.
9.Thereafter, the husband filed two Civil Miscellaneous Appeals in
CMA.Nos.1914 & 1915 of 2011. They came up for consideration before
a Division Bench of this Court and by a common judgment dated
21.11.2013 both the Civil Miscellaneous Appeals were dismissed. This
again implied that the marital relationship continued and subsisted.
10.Thereafter, the husband, probably agitated by such adverse
order, filed HMOP No.198 of 2014 seeking frustration of the marriage on
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the ground of cruelty and desertion.
11.The wife then filed two Interlocutory Applications. One
application was in I.A.No.108 of 2014 which was filed under Order VII
Rule 11 CPC. It was claimed that the averments in HMOP No.198 of
2014, mirrored the earlier averments in HMOP No.76 of 2003 which had
suffered an order of dismissal and therefore, it was claimed by the wife
that HMOP.No.198 of 2014 was an indulgence in re-agitating the same
issues and therefore, it should be rejected.
12.The said Interlocutory Application came up for consideration
before the Family Court, Thiruvallur, who had allowed the said
application on 18.07.2017 and consequently passed a decree in HMOP
No.198 of 2014 on the very same day dismissing / rejecting it.
13.Questioning that particular order, the husband had originally
filed a Civil Revision Petition before this Court. That Civil Revision
Petition appears to have meandered around but finally, it had been stated
by the learned Single Judge that the proper approach would have been to
file a Civil Miscellaneous Appeal and that the Revision Petition would
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not lie and had therefore directed the husband to convert the Revision
Petition as the Civil Miscellaneous Appeal.
14.I am informed that by Mr.M.Balasubramanian, learned counsel
for the husband that the conversion process is still under way in the
office of the Registry of the High Court.
15.As stated the wife had also filed a second application in
I.A.No.169 of 2015. This application had been filed taking advantage of
Section 26 of the Protection of Women from Domestic Violence Act,
2005 (the Act). This application also came up before the Family Court
Judge, Thiruvallur, who by order dated 18.07.2017 after reducing the
facts and the details of the various litigations between the parties as
stated above had finally stated that since HMOP No.198 of 2014 itself
had been rejected, the Interlocutory Application in I.A.No.169 of 2015,
had become infructuous and that the wife was not entitled for any relief
as sought in the application and therefore, dismissed the same.
16.Aggrieved by the said dismissal, the wife is before this Court,
by way of filing this Revision Petition.
https://www.mhc.tn.gov.in/judis
17.Heard arguments advanced by Mr.R.Srinivas, learned counsel
for the revision petitioner and Mr.M.Balasubramanian, learned counsel
for the respondents.
18.It is the contention of the Mr.R.Srinivas, learned counsel for the
revision petitioner who took this Court through Section 26 of the Act that
the said provision is an enabling provision, wherein it provides that any
relief sought under Sections 18, 19, 20, 21 and 22 of the Act, can also be
filed, in any pending suit or in any petition pending before the Family
Court and therefore stated that I.A.No.169 of 2015 had been lawfully
filed before the Family Court where HMOP No.198 fo 2014 was
pending. It is further contended by the learned counsel that any
application under Section 26 of the Act, should be construed as an
application in para materia to a counter claim in a Civil Suit. It is
contended that suit is dismissed or abandoned, an obligation is still
placed on the Trial Judge to examine such a counter claim.
19.Drawing a parallel with that particular procedure
Mr.R.Srinivas, learned counsel insists that the dismissal of I.A.No.169 of
2015 by merely stating that it had become infructuous, is not a proper
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approach and that it requires interference by this Court.
20.Mr.M.Balasubramanian, learned counsel who appears for the
respondents, on the other hand, stated that the main HMOP itself had
been rejected and therefore, no petition is pending as on date before the
Family Court, Thiruvallur and if at all the direction to convert the
Revision Petition filed earlier questioning rejection of the said HMOP
into a Civil Miscellaneous Appeal is actually done and placed for
consideration before a learned Single Judge of this Court, then the
present Revision Petition can be heard along with the said Civil
Miscellaneous Appeal and orders can be passed.
21.I have carefully considered the arguments advanced.
22.Section 18 of the Act relates to Protection orders. Section 19 of
the Act relates to Residence orders. Section 20 relates to Monetary
reliefs. Section 21 relates to Custody orders. Section 22 relates to
Compensation orders. These are reliefs or orders which can be sought
and also granted to a wife who feels that she had been unjustly dealt with
by the husband.
https://www.mhc.tn.gov.in/judis
23.The scope and manner in which those applications will have to
be heard or dealt with, is now not under the direct examination of this
Court. But Mr.R.Srinivas, learned counsel insists that Section 26 of the
Act, comes into play and stated that a cursory dismissal of an application
filed under Section 26 of the Act as infructuous has to be interfered with
by this Court.
24.Section 26 of the Act, is as follows:-
26. Relief in other suits and legal proceedings.—
(1) Any relief available under sections 18, 19,20, 21 and
22 may also be sought in any legal proceeding, before a
civil court, family court or a criminal court, affecting the
aggrieved person and the respondent whether such
proceeding was initiated before or after the
commencement of this Act.
(2) Any relief referred to in sub-section (1) may be
sought for in addition to and along with any other relief
that the aggrieved person may seek in such suit or legal
proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the
aggrieved person in any proceedings other than a
proceeding under this Act, she shall be bound to inform
the Magistrate of the grant of such relief.”
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25.A careful reading reflects that the said provision is an enabling
provision. The object behind it is not to drive the wife to various Courts
to seek such reliefs, but to seek the relief sought in a pending litigation,
whether such litigation is pending in a Civil Court or in a Magistrate
Court or in a Family Court. It is to enable all the parties to agitate the
issues relating to the Custody orders to be granted or the Monetary reliefs
to be granted or the Compensation orders to be granted or the Protection
orders to be granted, before one particular judicial forum. These issues
will have to be taken up independent of the issues over which the
existing suit / petition revolves.
26.In the instant case, HMOP No.198 of 2014 revolves around the
issues of cruelty and desertion. The said petition has been filed by the
husband. While adjudicating those particular issues, the grounds raised
under Section 26 of the Act, wherein the wife seeks protection of
Residence or Monetary relief or Compensation will have to be
adjudicated. This has to be independently adjudicated dehors the relief
sought in the main HMOP, even if the Original Petition seeking
frustration of the marriage is dismissed or rejected.
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27.In this particular case, an application was filed under Order 7
Rule 11 CPC and the Original Petition has been dismissed. I hold that
still, a duty is cast on the Family Court to examine whether the wife will
have to be granted protection or residence or monetary relief or
compensation. These are issues which revolves around the claim of the
wife and she should be given an opportunity to put forth as to why she
sought those reliefs, the manner in which she had been treated and the
reasons why such relief should be granted. The Court should devote its
attention to examine such a plea and take a decision whether the relief
sought can be granted or not and if to be granted, in what manner those
reliefs will have to be granted.
28.This requires examination of the pleadings and also giving an
opportunity to the parties to let in oral and documentary evidence. Even
if the HMOP is dismissed, still the petition under Section 26 of the Act
will have to continue independently and be adjudicated and a judicial
order will have to be passed. Short circuiting the rights of the parties by
holding that the application has become infructuous merely because the
husband's petition is dismissed or rejected would not serve the ends of
justice. If this were to be the nature of order passed, then any husband
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can withdraw a HMOP and leave the wife high and dry when she seeks
such or any other relief, discharge of which places an obligation on him.
29.Therefore, in order to prevent miscarriage of justice, the Family
Court should ensure that the issues raised in an application filed under
Section 26 of the Act, provides a platform for the parties to let in
evidence and thereafter the Court should come to a conclusion, whether
such relief should be granted or should be rejected. But such order
should be passed on the basis of pleadings and on the basis of evidence
recorded.
30.A cursory rejection stating that the application has become
infructuous has to be certainly interfered with and is interfered with.
31.I would therefore, allow the Civil Revision Petition and set
aside the reasoning of the Family Court, Thiruvallur that I.A.No.169 of
2015 has become infructuous merely because HMOP No.198 of 2014
had been rejected. I direct the Family Court, Thiruvallur, to take up
I.A.No.169 of 2015 for hearing and examine the issues therein and
provide an opportunity for both the parties, if they seek permission, to
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lead evidence and test that evidence during cross-examination and permit
rebuttal evidence also to be let in and thereafter come to a conclusion
whether the relief sought in that particular application should be rejected
or granted or the application itself should be dismissed. That particular
exercise will have to be done by the learned Family Court Judge,
Thiruvallur and I would handover the privilege to do that exercise to the
learned Family Court Judge, Thiruvallur, but place a caveat that it should
be done in manner known to law to ensure that ends of justice is
delivered to both the parties.
32.With the above observations, the present Civil Revision
Petition is allowed. No costs. Consequently, connected Civil
Miscellaneous Petition are closed.
04.04.2022
Internet:Yes/No
Index:Yes/No
smv
To,
The Family Court, Thiruvallur.
https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN,J.
smv
C.R.P.NPD.No.4129 of 2017
and
C.M.P.Nos.19358 & 19359 of 2017
04.04.2022
https://www.mhc.tn.gov.in/judis
