Allowed

Smt. Pooja Pant Tyagi v. Maj.. Abhishek Tyagi and Others

Allahabad HC24 Jan 2023/131/2022

Case brief

AI extract

What is this about?

The Allahabad High Court allowed an appeal against a Family Court order rejecting a consent to consolidate two reciprocal divorce suits. The bench held that consolidating suits involving common parties and questions of fact is expedient in the interest of justice.

What did the court decide?

The appeal was allowed. The order dated 7.11.2022 was set aside. Suit No. 3601 of 2022 and Suit No. 1158 of 2022 were directed to be consolidated and tried together.

Smt. Pooja Pant Tyagi Vs Maj.. Abhishek Tyagi and… — Matrimonial and Divorce | Allahabad HC (2023)

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Court No. - 1

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Case :- FIRST APPEAL No. - 131 of 2022

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Appellant :- Smt. Pooja Pant Tyagi Respondent :- Maj.. Abhishek Tyagi And Others Counsel for Appellant :- Deepanshu Dass,Yogesh Gurnanee

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Hon'ble Ramesh Sinha,J. Hon'ble Subhash Vidyarthi,J.

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Sri Yogesh Gurnanee, learned counsel for the appellant is present.

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Sri Ved Prakash, Advocate has filed his vakalatnama on behalf of the respondents No. 1 and 2 in the Registry today.

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Office is directed to place it on record.

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By means of an order dated 24.1.2023 notices were ordered to be issued to the respondents. Office has reported that the notices have been served upon the respondent nos. 1 and 2 and report of service of notice upon the respondent nos. 3 to 5 is still awaited, however, as the principal contesting respondent, i.e. the respondent no. 1, against whom the appellant is seeking a decree of dissolution of marriage has already put in appearance through Sri Ved Prakash, Advocate, we proceed to decide the appeal on its merits.

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Heard and perused the record.

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The instant appeal has been filed against the order dated 7.11.2022 passed by the Principal Judge, Family Court, Lucknow in Suit No. 2068 of 19 (old) and 1158 of 2022 (new) rejecting the application filed by the appellant for consolidation of Suits No. 1158 of 2022 and 3601 of 2022.

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The Suit No. 1158 of 2022 has been filed by the respondent claiming a decree of divorce against the appellant, whereas Suit No. 3601 of 2022 has been filed by the appellant seeking a decree of divorce against the respondent.

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Order 4-A Rule 1, C.P.C. provides for consolidation of suits and proceedings and it reads as follows:

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“ When two or more suits or proceedings are pending in the same court and the Court is of the opinion that it is expedient in the interest of justice, it may by order direct their joint trial whereupon all such suits and proceedings may be decided upon the evidence in all or any of such suits or proceedings.”

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Learned counsel for the appellant has submitted that both the aforesaid suits have been filed for dissolution of marriage of the appellant and the respondent no. 1 and, therefore, it would certainly be expedient in the interest of justice that both the suits be tried together.

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Learned counsel for the respondent no. 1, while opposing the prayer made by the appellant, has submitted that the appellant ought to have raised a counter-claim seeking decree of divorce instead of having filed a separate suit.

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Section 23-A of the Hindu Marriage Act provides as follows:

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“ 23A. Relief for respondent in divorce and other proceedings. In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counterclaim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been

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entitled if he or she had presented a petition seeking such relief on that ground."

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It is true that a defendant in a suit filed under section 13 of the Hindu Marriage Act has an option to make a counter-claim for divorce, but that right given under section 23-A, Hindu Marriage Act, does not take away the right of the defendant to file a separate suit, therefore, the separate suit filed by the defendant would also be maintainable.

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As common questions of fact between the same set of parties would be involved in both the cases and the relief sought in both the suits is dissolution of marriage between the appellant and the respondent no. 1, it would only be expedient in the interest of justice that both the suits be consolidated and be tried together.

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In view of the aforesaid discussion, we are of the view that the order dated 7.11.2022 passed by the Family court cannot be sustained and the same liable to be set aside. The Appeal is hereby allowed. Order dated 7.11.2022 is set aside.

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Suit No. 3601 of 2022 under section 13 of the Hindu Marriage Act and Suit No. 1158 of 2022 under section 13 of the Hindu Marriage Act are directed to be consolidated and tried together.

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It is directed that the Family Court shall proceed with the trial of the suits aforesaid and shall make every endeavour to decide both the suits expeditiously.

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(Subhash Vidyarthi, J. ) ( Ramesh Sinha, J. )

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Order Date :- 24.1.2023/A.Nigam

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Digitally signed by :- ANUJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench

Smt. Pooja Pant Tyagi v. Maj.. Abhishek Tyagi and Others

Case brief

What is this about?

What did the court decide?

Smt. Pooja Pant Tyagi v. Maj.. Abhishek Tyagi and Others

Case brief

What is this about?

What did the court decide?

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Smt. Pooja Pant Tyagi Vs Maj. Abhishek Tyagi