Madras High Court
M.Cindhu Beaulah vs J.Jason Alexander on 22 March, 2022
C.M.P.No.4211 of 2021 and
C.M.A.SR.No.34566 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.P.No.4211 of 2021
and
C.M.A.SR.No.34566 of 2020
M.Cindhu Beaulah ... Appellant
Vs.
J.Jason Alexander ... Respondent
PRAYER in C.M.A.SR.No.34566 of 2020: Civil Miscellaneous Appeal is filed
under Section 19 of the Family Court Act, 1984 r/w Section 55 of the Indian
Divorce Act 1869 to set aside the petition and docket order dated 22.08.2019 in
I.A.No.1 of 2019 in I.D.O.P.No.2275 of 2017 on the file of the Principal Judge,
Family Court at Chennai.
PRAYER in C.M.P.No.4211 of 2021: Civil Miscellaneous Petition is filed under
Section 5 of the Limitation Act to condone the delay of 91 days in filing the
above appeal.
1/7
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C.M.P.No.4211 of 2021 and
C.M.A.SR.No.34566 of 2020
For Appellant : Mr.K.Harikrishnan
For Respondent : Mr.Rajkumar Ashok Singh
ORDER
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J.]
C.M.P.No.4211 of 2021 has been filed seeking condonation of delay of
91 days in filing the appeal. The main appeal is filed to set aside the petition and
docket order dated 22.08.2019 in I.A.No.1 of 2019 in I.D.O.P.No.2275 of 2017 on
the file of the Principal Judge, Family Court at Chennai.
2.The respondent filed I.D.O.P.No.2275 of 2017 before the Principal
Judge, Family Court, Chennai under Section 32 of the Indian Divorce Act, 1869
for restitution of conjugal rights. It is an admitted fact that the marriage between
the appellant and the respondent was solemnized on 14.08.2013 at C.S.I. St.
George Catheral, Chennai – 600 086. The appellant entered appearance in the
said I.D.O.P and filed her detailed counter. Subsequently, the respondent filed
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C.M.P.No.4211 of 2021 and
C.M.A.SR.No.34566 of 2020
I.A.No.1 of 2019 under Order XXIII Rule 1 read with Section 151 C.P.C seeking
permission to withdraw the said I.D.O.P.No.2275 of 2017 with liberty to file a
fresh petition for dissolution of marriage on the same and subsequent cause of
action. The appellant contested the petition stating that the prayer in the earlier
I.D.O.P and subsequent I.D.O.P, is entirely different and hence, the respondent is
not entitled for the relief sought for in the interim application. However, the
learned Family Court Judge permitted the respondent to withdraw the
I.D.O.P.No.2275 of 2017. Assailing the said order, the present appeal has been
filed. Since there is a delay of 91 days in filing the appeal, the civil
miscellaneous petition has been filed for condonation of delay.
3.The learned counsel appearing for the appellant Mr.K.Harikrishnan
submitted that in the I.D.O.P filed for restitution of conjugal rights, the appellant
has already filed detailed counter and unless the issues in the said O.P are finally
decided, the respondent is not entitled to file a petition under Order XXIII Rule 1
of C.P.C, as cause of action for dissolution of marriage is totally different. Hence,
the order impugned in this appeal is liable to be set aside.
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C.M.P.No.4211 of 2021 and
C.M.A.SR.No.34566 of 2020
4.Per contra, the learned counsel appearing for the respondent
Mr.Rajkumar Ashok Singh would state that originally, when the first IDOP was
filed, the cause of action relates only to the marriage held between the appellant
and the respondent on 14.08.2013. In the said petition, the respondent has also
made allegation of cruelty. The appellant/wife did not cooperate when the case
was conducted before the Family Court and subsequently, on 13.04.2019, the
appellant removed Thirumangallyam (Thali) and threw it on the respondent in
front of the public. Hence, the respondent chose to withdraw the earlier I.D.O.P
and decided to file a petition for dissolution of marriage. According to the
learned counsel, there is no illegality in the order impugned in this appeal. He
further stated that after the Family Court granted permission to the respondent to
withdraw the earlier IDOP, he filed IDOP No.5240 of 2019 for dissolution of
marriage and hence, nothing survives for consideration in this appeal.
5.We find force in the submission of the learned counsel appearing for
the respondent/husband. Perusal of the record reveal that even in the first
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C.M.P.No.4211 of 2021 and
C.M.A.SR.No.34566 of 2020
I.D.O.P.No.2275 of 2017, the respondent has made allegation of cruelty against
the appellant/wife. In the petition filed seeking permission to file a fresh O.P, he
has averred that he tried for re-union, but the appellant did not co-operate and on
13.04.2019, she removed 'Thali' and threw it on the respondent. That apart, the
respondent already filed HMOP for dissolution of marriage. So, in our
considered view, the respondent/husband is entitled to seek for permission to file
fresh O.P, on the same cause of action. We find no illegality or irregularity in the
order dated 22.08.2019 passed by the Family Court, Chennai.
6. Considering the facts and circumstances, we are not inclined to
condone the delay. In that view, C.M.P.No.4211 of 2021 is dismissed.
Consequently, C.M.A.SR.No.34566 of 2020 is rejected. No costs.
[M.K.K.S.,J.] [V.S.G.,J.]
22.03.2022
skn
Index : Yes/No
Internet : Yes/No
https://www.mhc.tn.gov.in/judis
C.M.P.No.4211 of 2021 and
C.M.A.SR.No.34566 of 2020
To
1.The Principal Judge,
Family Court, Chennai.
2.V.R.Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.P.No.4211 of 2021 and
C.M.A.SR.No.34566 of 2020
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
skn
C.M.P.No.4211 of 2021
and
C.M.A.SR.No.34566 of 2020
22.03.2022
https://www.mhc.tn.gov.in/judis
