Madras High Court

Balaji vs Sujatha on 3 March, 2025

Author: Sathi Kumar Sukumara Kurup

Bench: Sathi Kumar Sukumara Kurup

CRP No. 1180 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.03.2025

CORAM :

THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP

Civil Revision Petition No.1180 of 2021
and
C.M.P. No. 9053 of 2021
---

Balaji .. Petitioner

Versus

Sujatha .. Respondent

Civil Revision Petition filed under Article 227 of Constitution of India,
praying to set aside the order and decree dated 05.06.2020 made in I.A. No.
811 of 2019 in HMOP. No. 283 of 2019 on the file of the learned Judge,
Family Court, Cuddalore.

For Petitioner : Mr. Prakash Adiapadam
for M/s.Achari and Antoni Associates
For Respondent : Mr. R. Gururaj

ORDER

This Civil Revision Petition has been filed to set aside the order dated

05.06.2020 passed in I.A. No. 811 of 2019 in HMOP. No. 283 of 2019 by the

learned Judge, Family Court, Cuddalore.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:32 pm )

2. The Petitioner herein has earlier filed M.O.P. No. 256 of 2018

under Section 13 (1) (i-a) of The Hindu Marriage Act on the file of the Family

Court, Puducherry against the Respondent herein for dissolution of marriage

solemnised between them on 10.07.2011 on the ground of cruelty.

3. In the Petition filed in M.O.P No. 256 of 2018, the Petitioner has

cited various instances that had taken place in the matrimonial life, before and

after marriage, to drive home the point that he was subjected to acute

matrimonial cruelty by the Respondent and her parents.

4. Admittedly, notice was ordered to the Respondent in MOP No.

256 of 2018, but she did not come forward to contest the said Original

Petition. Ultimately, by an order dated 24.07.2018, the Respondent was called

absent and an exparte order was passed granting a decree of divorce in favour

of the Petitioner.

5. A year later, on 31.07.2019, the Respondent herein has filed

HMOP No. 283 of 2019 under Section 9 of The Hindu Marriage Act for

restitution of conjugal rights on the file of The Family Court at Cuddalore.

6. On notice, the Petitioner has filed the instant I.A. No. 811 of 2019

in HMOP No. 283 of 2019 under Order VII Rule 11 (a) and (d) of CPC to https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:32 pm )

reject HMOP No. 283 of 2019. According to the Petitioner, even before

HMOP No. 283 of 2019 was filed on 31.07.2019, the marriage between the

Petitioner and the Respondent was dissolved by a decree of divorce dated

24.07.2018 passed in M.O.P. No. 256 of 2018. Therefore, there is no

relationship of Husband and Wife exist between the Petitioner as on the date

when HMOP No. 283 of 2019 was filed by the Respondent. It was also stated

that the matrimonial relationship existed between the Petitioner and the

Respondent as Husband and Wife has been snapped and severed and therefore

the present Petition under Section 9 of The Hindu Marriage Act between two

strangers is a mockery of judicial system and ought not to have been numbered

by the Registry. In such circumstances, according to the Petitioner, the relief

of restitution of conjugal rights does not arise. He therefore prayed for

rejecting the HMOP No. 283 of 2019 on the ground that there is no cause of

action for filing the same. It is also stated that seeking to set aside the ex

parte decree, I.A. No. 1 of 2019 in MOP No. 256 of 2018 has been filed by the

Respondent on 08.02.2019 to condone the delay of 169 days in filing the

application to set aside the ex parte decree in MOP No. 256 of 2018 dated

24.07.2018. Therefore also the present petition for HMOP No. 283 of 2019 is

not maintainable

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:32 pm )

7. The Respondent herein has filed a counter in I.A. No. 811 of 2019

in HMO P No. 283 of 2019 stating that already she has filed I.A. No. 1 of 2019

in MOP No. 256 of 2018 on 08.02.2019 to condone the delay of 169 days in

filing an application to set aside the ex parte decree dated 24.07.2018. It is

also stated that she has not received any notice in MOP No. 256 of 2018 filed

by the Petitioner and has no knowledge about the ex parte order passed

thereon. The ex parte order dated 24.07.2018 has been obtained by resorting to

fraud. However, she prayed the Court to dismiss the I.A. No. 811 of 2019 in

HMOP No. 283 of 2019.

8. The learned Judge, Family Court, Cuddalore has stated that

already Tr. C.M.P. No. 828 of 2019 has been filed by the Respondent herein

before the High Court, Madras Section 24 of C.P.C., to order withdrawal of

MOP No.256/2018 on the file of Family Court, Puducherry, and transfer the

same to any other court, which is suitable and having jurisdiction to try the

case in Cuddalore Town. In the said case, the Honourable High Court, Madras

passed an order dated 27.01.2020 stating that in case, the MOP No. 256 of

2018 is restored, it is open to the Respondent to file a petition seeking transfer

of MOP No. 256 of 2018 and the same shall be considered on merits. It was

further stated that the Respondent also filed I.A. No. 1 of 2019 in MOP No. 25

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of 2018 on 08.02.2019 to condone the delay of 169 days in preferring the

application to set aside the exparte order dated 24.07.2019 passed in MOP No.

256 of 2018. When the said application is pending, the relief sought for in I.A.

No. 811 of 2019 cannot be granted. In view of the observations made by this

Court in the order dated 27.01.2010 passed in Tr.CMP No. 828 of 2019 filed

by the Respondent and the pendency of I.A. No. 1 of 2019 in MOP No. 256 of

2018, the learned Judge, Family Court, Cuddalore, passed the order dated

05.06.2020 refusing to reject HMOP No. 283 of 2019.

9. Aggrieved by the order dated 05.06.2020 passed in I.A. No. 811

of 2019 in HMOP No. 283 of 2019, the present Civil Revision Petition has

been filed.

10. The learned Counsel for the Petitioner submitted that the

Petitioner has filed MOP No. 256 of 2018 for a decree of divorce in which

notice was served on the Respondent, but she did not come forward to contest

the case. Therefore, an ex parte decree of divorce was granted on 24.07.2018.

Even according to the Respondent, she has already filed I.A. No. 1 of 2019 in

MOP No. 25 of 2018 on 08.02.2019 to condone the delay of 169 days in

preferring the application to set aside the ex parte order dated 24.07.2019

passed in MOP No. 256 of 2018. While so, even before an order is passed in https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:32 pm )

I.A. No. 1 of 2019 in MOP No. 25 of 2018, she is not entitled to maintain the

present HMOP No. 283 of 2019. After grant of decree for divorce in favour of

the Petitioner-Husband on 24.07.2018 in MOP. No. 256 of 2018 on the file of

the learned Judge, Family Court, Puducherry, there is no relationship as

Husband and Wife between the Petitioner and the Respondent. Therefore, the

Petition filed in HMOP. No. 283 of 2019 under Section 9 of Hindu Marriage

Act filed by the Wife is not maintainable, on the date of filing of petition.

There is no cause of action at all for filing HMOP No. 283 of 2019. Therefore,

the petition filed by the Wife before the learned Judge, Family Court,

Cuddalore in HMOP. No. 283 of 2019 is not at all maintainable. The learned

Judge, Family Court, Cuddalore, without considering the above facts,

erroneously dismsised I.A. No. 811 of 2019 filed by the Petitioner under Order

VII Rule 11 of Civil Procedure Code and it calls for interference by this Court.

Accordingly, the learned Counsel for the Petitioner prayed this Court to allow

the present Civil Revision Petition.

11. The learned Counsel for the Respondent/Wife would contend that

the petition filed under Order VII Rule 11(a) of Civil Procedure Code in I.A.

No. 811 of 2019 in HMOP. No. 283 of 2019 on the file of the learned Judge,

Family Court, Cuddalore is not at all maintainable. In MOP No. 256 of 2018

https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:32 pm )

filed by the Petitioner before the learned Judge, Family Court, Puducherry,

summons were not served to the Wife and without serving summons, an ex

parte order was obtained on 24.07.2018 in MOP No. 256 of 2018 behind the

back of Wife/Respondent. It is not a contested Judgment and Decree to attract

Order VII Rule 11 of Civil Procedure Code. In cases where after full contest,

the decree is passed, still, the Husband cannot claim that there is no Husband

and Wife relationship until the Order passed by the learned Judge, Family

Court attains finality either in Appeal or Second Appeal. Here, the

Respondent/Wife has already filed I.A. No. 1 of 2019 in MOP No. 256 of 2018

to condone the delay of 169 days in filing the Petition under Order IX Rule 13

of Civil Procedure Code and the same is pending. While so, if I.A. No. 811 of

2019 is allowed in HMOP No. 283 of 2019 is rejected, it will affect the right of

the Respondent-Wife. The Civil Revision Petition lacks merits and it is liable

only to be dismissed.

Point for consideration:

Whether the order and decree dated 05.06.2020 passed in I.A. No. 811 of 2019 in HMOP No. 283 of 2019 on the file of the learned Judge, Family Court, Cuddalore, is to be set aside as perverse?

12. Heard the learned Counsel for the Revision Petitioner-Husband https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:32 pm )

and the learned Counsel for the Respondent. Perused the materials placed

beforee this Court, including the order dated 05.06.2020 passed in I.A. No.

811 of 2019 in HMOP No. 283 of 2019.

13. The learned Judge, Family Court, Cuddalore, on consideration of

the contention of the learned Counsel for the Petitioner in I.A. No. 811 of 2019

in HMOP. No. 283 of 2019 and on perusal of the counter of the

Respondent/Wife and after hearing both side counsels and on perusal of the

records, rejected the claim of the Petitioner/Husband that the relationship as

Husband and Wife does not exist after grant of decree for divorce on

24.07.2018 in MOP No. 256 of 2018. The learned Judge, Family Court,

Cuddalore found that the Wife had preferred Tr. C.M.P. No. 828 of 2019 in

which this Court observed that in case MOP No. 256 of 2019 is restored on

file, it is open to the Respondent herein to file a petition seeking transfer of

MOP No. 256 of 2018 and the same shall be considered on merit. The learned

Judge, Family Court, Cuddalore also observed in the order dated 05.06.2020

that invoking Order VII Rule 11 of Civil Procedure Code in this case is not

proper. The order dated 05.06.2020 reads thus:

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                         fpilf;fj;jf;fjy;y        vd    ,k;kD     js;Sgo     bra;J
https://www.mhc.tn.gov.in/judis               ( Uploaded on: 05/03/2025 08:49:32 pm )



                        cj;jutplg;gLfpwJ/”

14. It is seen that the Respondent herein has already filed an

application to set aside the ex parte decree dated 24.07.2018 passed in MOP

No. 256 of 2018 filed by the Petitioner-Husband. Therefore, there is every

possibility for restoration of the MOP No. 256 of 2018 filed by the Petitioner

herein for disposal on merits. In fact, when the Respondent has filed Tr.CMP

No. 828 of 2019, this Cour,t in the order dated 27.01.2020 categorically held

that if at the instance of the Respondent herein, the application for restoration

is allowed, then it is open to the Respondent to seek for transfer of MOP No.

256 of 2018 filed by the Petitioner-Husband. When such an observation was

made by this Court, the application filed by the Petitioner in I.A. No. 811 of

2019 in HMOP No. 283 of 2019 for rejecting HMOP No. 283 of 2019 is not

maintainable. It is an admitted fact that an exparte decree of divorce was

granted on 24.07.2018 in MOP No. 256 of 2018. One year later, the

Respondent has filed HMOP No. 283 of 2019 under Section 9 of The Hindu

Marriage Act. That apart, the Respondent also filed an application for

restoring MOP No. 256 of 2018. In such circumstances, rejecting HMOP No.

283 of 2019 by invoking Order VII Rule 11 of CPC is not proper. The learned

Judge, Family Court, Cuddalore in the order passed in I.A. No. 811 of 2019

had rightly observed that the Respondent/Wife came to know about the https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:32 pm )

passing of a decree in favour of the Husband in MOP. No. 256 of 2018 on the

file of the learned Judge, Family Court, Puducherry only through the Petitioner

in I.A. No. 811 of 2019 in HMOP. No. 283 of 2019 and immediately she had

filed a Petition along with Petition to condone the delay to restore MOP No.

256 of 2019. It is also observed by the learned Judge, Family Court, Cuddalore

that the Petition filed by the Respondent-Wife in HMOP. No. 283 of 2019

disclose a cause of action and therefore, invoking Order VII Rule 11 of CPC at

the instance of the Petitioner cannot be considered. Such an observation made

in the order dated 05.06.2020 is legally sustainable.

15. On perusal of the Order passed by the learned Judge, Family

Court, Cuddalore it is found justified as a well-reasoned Order. The order

dated 05.06.2020 was passed by taking note of the observations made by this

Court in the order dated 27.01.2020 passed in Transfer CMP No. 828 of 2019.

Hence, this civil Revision petition filed by the Husband seeking to set aside

the order of the learned Judge, Family Court, Cuddalore is not maintainable.

The order passed by the learned Judge, Family Court, Cuddalore in I.A.No.811

of 2019 in HMOP. No. 283 of 2019 is a reasonable order and it does not

warrant any interference by this Court.

16. In the light of the above, the point for consideration is answered https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:32 pm )

in favour of the Respondent/Wife and against the Petitioner/Husband. The

order dated 05.06.2020 passed in I.A. No. 811 of 2019 in HMOP. No. 283 of

2019 passed by the learned Judge, Family Court, Cuddalore is found proper

and the same is to be confirmed.

In the result, this Civil Revision Petition is dismissed. The order

passed by the learned Judge, Family Court, Cuddalore in I.A. No. 811 of 2019