V.G.Jagan Narayanan vs K.Bhavani
2022 Latest Caselaw 1903 Mad

                                                                 1

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED: 07.02.2022

                                                              Coram

                                        The Hon'ble Mr. Justice C.V.KARTHIKEYAN

                                                   C.R.P.PD.No.2132 of 2017
                                                             and
                                                    C.M.P.No.10218 of 2017


                     V.G.Jagan Narayanan                                      ... Petitioner/respondent

                                                                Vs

                     K.Bhavani                                                 ...Respondent/petitioner

                                  Civil Revision Petition filed under Article 227 of the Constitution of
                     India, seeking to strike off the GWOP.No.1816 of 2017 on the file of the
                     I-Additional Family Court, Chennai.


                                        For Petitioner               ..   Mr.D.Ferdinand for
                                                                               M/s.BFS Legal

                                        For Respondent               ..   Mr.K.Kannan


                                                             ORDER

I do not think the Revision Petition should be kept any further on

the board of this Court.

https://www.mhc.tn.gov.in/judis

2. The revision petitioner is the husband and the respondent is his

own wife. There were issues between themselves leading to filing of

O.P.No.181 of 2016 under Section 13(1)(ia) and under Section 26 of the

Hindu Marriage Act, 1955 by the petitioner herein before the Family

Court, Chennai. That Original Petition did not move along in its normal

course. It is stuttered on its way. The respondent herein was originally set

ex-parte and thereafter, an ex-parte decree for divorce and also for custody

of the two minor children were granted. It is to be mentioned that one of

the children was a boy and the other a girl.

3. I am really surprised with the nature of ex-parte decree. The

learned Judge had not examined either one of the two children to

determine their wish. After extracting the pleadings in the ex-parte

judgment which is dated 15.09.2016, it had been stated that the Court was

of the considered view that the petitioner herein / husband was also

entitled to permanent custody of the minor children.

4. Such a judgment is non-est in law and has to be straight away

interfered with.

https://www.mhc.tn.gov.in/judis

5. The children have not been examined to determine their wish, nor

even were they asked, nor even opinion obtained. Even if the mother is

set ex-parte, while deciding custody and the father is present, he could

have been called upon to produce children to find out their wish. That step

was not taken.

6. Subsequently, it transpires that the respondent herein / wife had

filed an application to set aside the ex-parte judgment / order and I am

informed that the order had been set aside rightfully and later, the parties

went to trial and after contest, an order had been passed on 15.11.2019

again granting divorce, but thankfully, holding out the custody of the two

children to the respondent / wife.

7. The respondent / wife had also filed GWOP.No.1816 of 2017.

Mere filing of the said petition has triggered the present revision petition

by the husband. He could very well have filed a counter in GWOP and

contested its maintainability and jurisdiction and could have very easily

pointed out the learned Judge that an ex-parte decree had been passed

handing over the two children to him and therefore, no further enquiry

should be done.

https://www.mhc.tn.gov.in/judis

8. Prima facie the revision petition is not maintainable. If the

petitioner wants to contest the filing of the GWOP, which is lawfully filed

under provisions of law enacted by statute, then primarily, he should invite

an order from the learned Trial Judge and thereafter, proceed against the

said order. Filing a civil revision petition questioning filing of a Guardian

Original Petition, which is still pending, cannot be countenanced and on

that one ground itself, this civil revision petition should suffer an order of

dismissal.

9. Be that as it may, it is also informed that the son has attained the

age of majority and is now studying second year MBBS. The daughter is

now aged 16 years. It is stated that a comprehensive order had been

passed in O.P.No.181 of 2016 by order dated 15.11.2019, wherein, the

custody has been handed over to the respondent. Both the children are

with the respondent. They are also visiting the petitioner herein. Let that

arrangement go on. The petitioner is also paying necessary maintenance as

determined by the Court. Let that maintenance be continued to be paid to

the respondent. The respondent is residing in a flat owned by the

petitioner. Let her continue to reside in that particular flat. https://www.mhc.tn.gov.in/judis

10. So far as the GWOP.No.1816 of 2017 is concerned, it is for the

petitioner herein to enter appearance, to contest, to file a counter and the

learned Judge before whom the said petition is pending has to pass

necessary orders. This Court cannot intervene and strike out GWOP or

encourage the filing of the present revision petition.

11. With the above observations, the present revision petition is

dismissed. No costs. Consequently, connected miscellaneous petition is

closed.

07.02.2022

Internet:Yes/No Index:Yes/No smv

To

The I-Additional Family Court, Chennai.

https://www.mhc.tn.gov.in/judis

C.V.KARTHIKEYAN,J.

smv

C.R.P.PD.No.2132 of 2017 and C.M.P.No.10218 of 2017

07.02.2022

https://www.mhc.tn.gov.in/judis