Dismissed

Priti W/O Devendra Rangashahi v. Devendra Ramaswami Rangashahi and Another

Bombay HC20 Feb 2013WP/949/2013

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged the Family Court's order allowing restoration of a Hindu Marriage Petition. The High Court found the Family Court right to allow restoration because it failed to issue a mandatory notice of an amendment application seeking permanent alimony to the absent respondent.

What did the court decide?

The writ petition was dismissed with no order as to costs.

Priti W/O Devendra Rangashahi Vs Devendra Ramaswami… — Matrimonial and Divorce | Bombay HC (2013)

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WP949-13

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FARAD CONTINUATION SHEET No .

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR

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WRIT PETITION NO. 949/2013

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(PRITI DEVENDRA RANGASHAHI VERSUS DEVENDRA RAMASWAMI RANGASHAHI & ANOTHER)

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Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions and Registrar's orders

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Court's or Judge's orders

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Shri A.S. Chandurkar, counsel for the petitioner.

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CORAM : SMT. VASANTI A. NAIK, J. DATE : FEBRUARY 20, 2013.

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By this petition, the petitioner impugns an order passed by the Family Court, Nagpur on 23.11.2012 allowing an application filed by the respondent no.1 for restoration of the Hindu Marriage Petition.

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The petitioner had filed a Hindu Marriage Petition for grant of a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act. The respondent no.1-Husband was served with the notice of the proceedings but, did not participate in the proceedings. It appears that during the pendency of the proceedings, the petitioner had filed the application under Order VI Rule 17 of the Code of Civil Procedure for amendment of the petition so as to seek permanent alimony from the respondent no.1. The Family Court had allowed the application on the same day as the respondent no.1 was not represented by a counsel in spite of the service. The Family Court decided the Hindu Marriage Petition exparte in favour of the petitioner and dissolved the marriage between the parties by a decree of divorce and directed the respondent no.1 to pay a sum of Rs.3,08,086/- towards permanent alimony. The respondent

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no.1, being aggrieved by the judgment dated 23.02.2010, filed an application for restoration of the Hindu Marriage Petition. The restoration was sought mainly on the ground that the petitioner had not supplied a copy of the amendment application to the respondent no.1 though by the proposed amendment, the nature of the Hindu Marriage Petition was substantially changed and though it was necessary in view of the provisions of Order VI Rule 17 of the Code of Civil Procedure (Bombay Amendment) to serve a copy of the amendment application on the defendant where the defendant had not appeared in spite of service of summons. The Family Court, by the impugned order dated 23.11.2012, allowed the restoration application.

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On hearing the learned counsel for the petitioner and on a perusal of the impugned order, it appears that the Family Court was justified in allowing the application filed by the respondent no.1 for restoration of the Hindu Marriage Petition. The petitioner had filed a Hindu Marriage Petition for grant of a decree of divorce. Though the respondent no.1 was served with the notice, the respondent no.1 was not represented by a counsel before the Family Court. The Family Court had allowed the application filed by the petitioner for amendment of the Hindu Marriage Petition so as to incorporate a prayer for grant of permanent alimony. The proposed amendment substantially changed the nature of the petition. However, the amendment application was allowed by the Family Court without issuing any notice to the respondent no.1 on the application for amendment and without hearing the respondent no.1. In view of the provisions of Order VI Rule 17 (Bombay Amendment) of the Code of Civil Procedure, it was incumbent on the part of the Court to have issued a notice of the

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amendment application to the respondent no.1 before allowing the amendment application.

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The submission made on behalf of the petitioner that it was necessary for the trial Court to ignore the Bombay Amendment in view of the law laid down by the Division Bench of this Court reported in 2012(1) Mh.L.J. 299 ( Rajkumar Sampatraoji Kuthe Versus State of Maharashtra & others ) is not well founded as in the said reported decision, this Court had directed the subordinate Courts to ignore the restrictions of the Bombay Amendment to Order V Rule 15 of the Code of Civil Procedure as the Bombay Amendment was restrictive in nature and was inconsistent with the principal provisions of Order V Rule 15 of the Code of Civil Procedure. Such is not the case here. There is no inconsistency whatsoever between the principal provisions of Order VI Rule 17 of the Code of Civil Procedure and the provisions of Order VI Rule 17 of the Bombay Amendment. The Bombay Amendment is neither restrictive nor inconsistent with the principal provisions of Order VI Rule 17 of the Code of Civil Procedure. Even otherwise, in the absence of the provisions of the Bombay Amendment also, the Court was duty bound to issue a notice of the amendment application to the respondent no.1 as by the proposed amendment, the petitioner was claiming permanent alimony and it was necessary to hear the respondent no.1 on the same. In a given case, a person may not defend a petition for grant of decree of divorce and may be willing for such a decree. However, a person would like to defend a prayer for permanent alimony. In any case, the Family Court was duty bound to issue notice on the amendment application to the respondent no.1, which the Court had failed to do and, hence, the Family Court had rightly allowed the restoration application by the impugned order dated

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23.11.2012. There is, however, some substance in the submission made on behalf of the petitioner that the Family Court ought to have set aside the judgment and decree only in regard to permanent alimony and could not have set aside the decree of divorce. That point is, therefore, kept open and the petitioner could as well agitate the same at the appropriate stage.

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However, for the reasons aforesaid, the writ petition is dismissed with no order as to costs.

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JUDGE

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APTE

Priti W/O Devendra Rangashahi v. Devendra Ramaswami Rangashahi and Another

Case brief

What is this about?

What did the court decide?

Priti W/O Devendra Rangashahi v. Devendra Ramaswami Rangashahi and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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