Madras High Court
Umamaheswari @ Chellyaha vs Dilipkumar on 23 March, 2023
C.R.P.(PD).No.1128 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.03.2023
CORAM:
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.(PD).No.1128 of 2021
and C.M.P.No.8742 of 2021
Umamaheswari @ Chellyaha ...Petitioner
Vs.
Dilipkumar ...Respondent
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, against F.C.O.P.No.116 of 2021 on the file of the Family Court,
Vellore to strike of the petition on the ground of res-judicata.
For Petitioner : Mrs.V.Jayalakshmi
for Mr.G.V.Sridharan
For Respondent : Mr.B.Jawahar
ORDER
The Civil Revision Petition has been filed by the petitioner seeking
to strike of the petition on the ground of res-judicata in F.C.O.P.No.116
of 2021 on the file of the Family Court, Vellore.
2.The case of the petitioner is that the petitioner is the wife and the
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respondent is the husband. The marriage between the petitioner and the
respondent was solemnized as per Hindu religious rites and customs on
12.09.2014. Out of the wedlock, one female child was born to them. The
respondent is a B.E. Graduate and doing jaggery business which is
ancestral business of the respondent's family. The petitioner is a M.B.A.
Graduate and worked with the Bank of Ceylone at Chennai prior to her
marriage.
(i).F.C.O.P.No.3 of 2016 was filed by the petitioner therein under
Section 13(1)(i-a) of Hindu Marriage Act to dissolve the marriage which
was held on 12.09.2014 between the petitioner and the respondent on the
ground of cruelty and for costs.
(ii).I.A.No.340 of 2017 was filed by the petitioner herein seeking
for a direction to direct the respondent to pay the petitioner a sum of
Rs.50,000/- per month towards interim maintenance and Rs.25,000/- per
month towards maintenance of her child and to pay a sum of Rs.10,000/-
towards litigation expenses.
3.Learned counsel for the petitioner would submit that entertaining
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C.R.P.(PD).No.1128 of 2021
of F.C.O.P.No.116 of 2021 filed by the respondent before the learned
Family Court Judge is clearly abuse of process of law and without
jurisdiction and non-application of mind. He would submit that the
learned Family Court Judge ought not to have entertained.
F.C.O.P.No.116 of 2021 since the respondent has totally suppressed
earlier proceedings in F.C.O.P.No.3 of 2016 filed under Section 13(i)(a)
of the Hindu Marriage Act, 1955 seeking for divorce on the ground of
cruelty and the same was dismissed.
4.He would further submit that the learned Family Court Judge
ought not to have entertained F.C.O.P.No.116 of 2021 since the earlier
F.C.O.P.No.3 of 2016 is contested and in its entirety, the same was
dismissed, later the same was confirmed in C.M.A.No.1978 of 2018. The
petitioner has filed a petition in F.C.O.P.No.116 of 2021 on the ground
that desertion is either sustainable in law or on the facts and liable to be
dismissed.
5.Learned counsel for the respondent would submit that right from
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C.R.P.(PD).No.1128 of 2021
the beginning, the marital life between the petitioner and the respondent
was not peaceful and the petitioner herein left the matrimonial home in
the year 2014 and she was in the custody of her parents. He would submit
that the petitioner herein spoiled the name of the respondent by spreading
false allegations against him and the respondent for the sake of his
family, tolerated all the cruelled acts of the petitioner. He would further
submit that there is absolutely no chance of his reunion and the marriage
between the respondent and the petitioner is practically dated and had
been irretrievable broken down.
6.Heard learned counsel for the petitioner and learned counsel for
the respondent and perused the materials available on record.
7.It is relevant to extract Section 11 of the Civil Procedure Code:
Res judicata: No Court shall try any suit or issue in which the
matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent
suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.
8.On perusal of records, it is seen that there are certain disputes
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C.R.P.(PD).No.1128 of 2021
between the petitioner and the respondent. The petitioner is the wife and
the respondent is the husband. The respondent filed a petition in
F.C.O.P.No.3 of 2016, the same was dismissed by the learned Family
Court Judge, Vellore.
9.On going through the typed set of papers, it is seen that
aggrieved by the order in F.C.O.P.No.3 of 2016, the petitioner therein
preferred an appeal in C.M.A.No.1978 of 2018 before the Hon'ble
Division Bench of this Court, the Hon'ble Division Bench by its
judgment dated 03.11.2020, dismissed the appeal filed by the appellant
therein. The relevant paragraphs of the aforesaid judgment of this Court
is extracted hereunder:
“57.In our view, the relationship had not even
strengthened beyond tying of the marital chord on
12.9.2014 in the marriage ceremony. The appellant has
not taken any steps to strengthen the matrimonial
relationship.
58.Instead, the appellant took the easy way out by
driving the respondent away out of the matrimonial
home. The appellant failed in his responsibility as a
provider and protector of the respondent and their
child. Therefore, the appellant cannot take advantage of
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C.R.P.(PD).No.1128 of 2021
his misdeed to the detriment of the respondent.
59.In our view, the Family Court has come to a
fair conclusion on facts that the appellant has not made
out any case of cruelty by the respondent on the
appellant.
60.We therefore find no reasons to interfere with
the impugned fair and decretal order passed by the
Family Court in dismissing the F.C.O.P.No.3 of 2016.
We therefore dismiss the present appeal filed by the
appellant. No cost. Consequently, connected
miscellaneous petitions are closed.”
10.In the interregnum, this Court by its order 20.01.2023,
appointed Advocate Commissioner to take the child to her paternal
ground mother's house on 29.01.2023 and also directed to file a Report
on or before 13.02.2023. Accordingly, learned Advocate Commissioner
had filed her Report.
11.It is seen that the respondent father is willing to admit the child
in the School at Vellore in the upcoming academic year and he has also
paid a sum of Rs.13,100/- to Narayana e-Techno School towards
admission fees.
12.This Court is of the view that the welfare of the child is
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C.R.P.(PD).No.1128 of 2021
paramount and took steps to settle the matter amicably, whereas the
parents are not bothered about the interest of the child. Both of them are
trying to drag on the proceedings and they are not interested to settle the
dispute amicably. It is found that the matter has to be decided on merits.
13.It is seen that the petitioner had left the matrimonial house
based on the allegation made by the respondent as regards her character.
14.It is seen that the Court below ought not to have entertained the
petition filed by the respondent and the respondent had also suppressed
the fact by filing one petition after the other which is a clear abuse of
process of law and without jurisdiction and non-application of mind. The
Hon'ble Apex Court time and being has been reiterating that person with
unclean hands and person who suppresses the material facts with a
motive to gain some advantage or benefit at the hands of the court are not
entitled for any relief from the court, and the relevant portions of its
judgments in this regard are extracted hereunder :
“In Vijay Syal & Anr. v. State of Punjab & Ors., (2003) 9
SCC 401; the Hon'ble Apex Court has held as follows:-
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C.R.P.(PD).No.1128 of 2021
"In order to sustain and maintain sanctity and solemnity of
the proceedings in law courts it is necessary that parties
should not make false or knowingly, inaccurate statements
or misrepresentation and/or should not conceal material
facts with a design to gain some advantage or benefit at the
hands of the court, when a court is considered as a place
where truth and justice are the solemn pursuits. If any party
attempts to pollute such a place by adopting recourse to
make misrepresentation and is concealing material facts it
does so at its risk and cost. Such party must be ready to take
consequences that follow on account of its own making. At
times lenient or liberal or generous treatment by courts in
dealing with such matters are either mistaken or lightly
taken instead of learning proper lesson. Hence there is a
compelling need to take serious view in such matters to
ensure expected purity and grace in the administration of
justice".
K. Jayaram and Ors. vs. Bangalore Development Authority
and Ors. (08.12.2021 - SC) : MANU/SC/1199/2021
16. It is necessary for us to state here that in order to check
multiplicity of proceedings pertaining to the same subject-
matter and more importantly to stop the menace of soliciting
inconsistent orders through different judicial forums by
suppressing material facts either by remaining silent or by
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C.R.P.(PD).No.1128 of 2021
making misleading statements in the pleadings in order to
escape the liability of making a false statement, we are of the
view that the parties have to disclose the details of all legal
proceedings and litigations either past or present
concerning any part of the subject-matter of dispute which is
within their knowledge. In case, according to the parties to
the dispute, no legal proceedings or court litigations was or
is pending, they have to mandatorily state so in their
pleadings in order to resolve the dispute between the parties
in accordance with law."
15.This Court is of the considered view that the learned Family
Court Judge ought not to have entertained F.C.O.P.No.116 of 2021 since
the respondent has totally suppressed earlier proceedings in
F.C.O.P.No.3 of 2016 filed under Section 13(i)(a) of the Hindu Marriage
Act, 1955 seeking for divorce on the ground of cruelty and the same was
dismissed.
16.On going through the typed set of papers, it is seen that the
Division Bench of this Court in C.M.A.No.1978 of 2018 by its judgment
dated 03.11.2020 dismissed the appeal and also given a finding. The
relevant paragraphs of the aforesaid judgment is extracted hereunder:
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C.R.P.(PD).No.1128 of 2021
46. In our view, the appellant and the respondent have
hardly lived together to experience the pain and
pleasure of married life. The appellant has exhibited
traits of a husband who wants to shirk his responsibility
as man to his wife and child.
47. It is evident that after getting married, the appellant
concluded either he was either incapable of shouldering
responsibilities associated with marriage or has
imagined that the respondent had brought ill luck to
him as his business collapsed.
48.The appellant perhaps expected the respondent and
her family to bail him out of his financial mess but
sensed resistance and unwillingness on the part of the
respondent and therefore imagined reasons to conclude
that the respondent was cruel to him.
49.The appellant appears to have developed an
aversion and a dislike for the respondent and thus went
ahead to drive the respondent out from the matrimonial
home and later filed F.C.O.P.No.3 of 2016.
Unfortunately, the elders have also not taken any steps
to unite the appellant and the respondent even after a
girl child was born out of the wedlock.
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17.In the present case on hand, there is no material fact to prove
that after dismissal of C.M.A., the husband has taken steps to reunite
with the wife and lead a normal life. At the time when he filed a petition
under cruelty on the ground that the wife has deserted him, he failed to
prove the same and hence the divorce petition was dismissed. Now, he
cannot, as an after thought file another petition involving the ground of
desertion once again.
18.Considering the facts and circumstances of the case and the
submission made by the learned counsel appearing on either side, this
Court is inclined to issue the following directions:
(a)Since the interest of the child has to be protected, the father is
hereby permitted to visit the child on all Saturdays and Sundays, the
mother may accompany the child.
(b)The child shall be taken to the father's house only to get
adjusted with the father's family and to resolve the issues between them
and not to continue the fight with each other.
(c) In the interest of justice, this Court is of the view that the child
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C.R.P.(PD).No.1128 of 2021
has to be maintained by the father and a payment of Rs.10,000/- as stated
by the Court below has to be continued to be paid and the child education
expenses has to be taken care by the father.
19.It is pertinent to point out that in order to arrive at an amicable
settlement this Court on an earlier occasion viz., on 20.01.2023, directed
the parties to appear before the Psychiatrist at Madras Medical College &
RGGGH, Chennai and talk each other for amicable settlement and posted
the case on 13.02.2023 for reporting compliance. When the matter was
taken up on 13.02.2023 for hearing wife was willing to join the husband
and both the parties were directed to file a compromise memo in case
they agreed upon the terms and conditions as directed earlier. Today,
when the matter was taken up for hearing on 27.02.2023 again they went
back on their promise wherein they undertook that they will file a joint
memo of compromise. As there is no possibility of settlement this Court
is inclined to decide the issue on merits.
20.In the result, the Civil Revision Petition is Allowed and the
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plaint in F.C.O.P.No.116 of 2021 is hereby struck of. However, there
shall be no order as to costs. Consequently, the connected miscellaneous
petition is closed. It is left open to the parties to approach the
appropriate Doctors, if they are willing to do, as suggested by this Court,
to strengthen their ties.
23.03.2023
Index: yes/no
Speaking Order:yes/no
Neutral citation:yes/no
pam
To
The Family Court, Vellore.
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C.R.P.(PD).No.1128 of 2021
V.BHAVANI SUBBAROYAN, J.
pam
C.R.P.(PD).No.1128 of 2021
23.03.2023
https://www.mhc.tn.gov.in/judis
