Dismissed

Devendra Gopinand Ughade v. Vijaya Devendra Ughade

Bombay HC27 Jan 2014CAM/194/2012

Case brief

AI extract

What is this about?

The High Court dismissed the Family Court appeal and the accompanying civil application seeking leave to amend a divorce petition. The court held that the fresh petition was barred by Order IX Rule 9 of the CPC as it relied on the same cause of action dismissed previously for non-prosecution.

What did the court decide?

The Family Court Appeal and Civil Application No. 194 of 2012 were dismissed.

Devendra Gopinand Ughade Vs Vijaya Devendra Ughade — Matrimonial and Divorce | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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FAMILY COURT APPEAL NO. 97 OF 2011 WITH CIVIL APPLICATION NO. 194 OF 2012

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Devendra Gopichand Ughade .. Appellant vs. Vijaya Devendra Ughade .. Respondent

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Mr. S. V. Sadavarte for Appellant. Mr. Rajesh More for Respondent.

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CORAM : A. S. OKA & M. S. SONAK, JJ. 27TH JANUARY 2014

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ORAL JUDGMENT (Per A.S. OKA, J.) :-

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1] By this Family Court Appeal, the Appellant -husband has taken an exception to the judgment and decree dated 26.04.2011 passed by the learned Judge of the Family Court. By the impugned judgment and decree, the Petition filed by the Appellant in the year 2008 seeking a decree of divorce on the ground of cruelty and desertion has been dismissed by the learned Judge by invoking the bar of Order 9 Rule IX of the Civil Procedure Code, 1908 (for short “the said Code”).

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2] Few facts will have to be set out with a view to appreciate the submissions made by the learned counsel appearing for the parties.

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3] On 20.02.2004, the Appellant – husband filed a Petition for

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divorce before the Family Court being Petition No.129 of 2004. The marriage between the Appellant and the Respondent was solemnized on 03.01.2002. In the said Petition instances of alleged cruelty have been set out. It is alleged that on 09.03.2002, the Respondent wife left the matrimonial home on her own and thereafter lodged FIR alleging commission of offence against the Appellant and his family members under Section 498-A of the Indian Penal Code. On 25.04.2002 the Appellant issued a legal notice to the Respondent calling upon the Respondent to consent for giving divorce.

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4] The said earlier Petition came up before the learned Judge of the Family Court on 03.12.2004. When the Petition was called out for final hearing, the Appellant was absent. Therefore, the Petition was dismissed in default.

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5] Thereafter, a fresh petition being PA No. 480 of 2008 was instituted by the Petitioner in the Family Court at Pune. Even in the said petition, a prayer was for a decree of divorce under Section 13(1) of the Hindu Marriage Act, 1955 (for short “the said Act”). The decree was sought on the grounds of cruelty and desertion. It is this petition which has been dismissed by the learned Judge of the Family Court by holding that the bar under Rule 9 of Order IX of the said Code will be attracted.

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6] Learned counsel appearing for the Appellant submitted that

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the earlier petition filed by the Appellant alleging grounds of cruelty and desertion was not decided on merits. He urged that even an application for restoration of the earlier petition was dismissed for non prosecution. He urged that the cause of action which is available to the Appellant to seek a decree of divorce is a cause of action of continuing nature. He relied upon a decision of the learned Single Judge of Himachal Pradesh High Court in the case of Smt.

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Panno vs. Makholi Ram¹ . He also invited our attention to Civil Application No. 194 of 2012 which is a Civil Application filed by the Appellant husband seeking a leave to amend the divorce petition on which the impugned judgment and decree has been passed. Amendment sought is for incorporating paragraph 4(a) in the Petition alleging that the conduct of the Respondent even after dismissal of the earlier Petition of the year 2004 has caused mental and physical cruelty to him. It is alleged that there is a continuous cruelty from the year 2002. He submitted that by setting aside the impugned judgment and decree, amendment may be allowed with a direction to decide the Petition afresh. The learned counsel for the Respondent supported the impugned judgment and decree.

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7] We have considered the submissions. We have perused the earlier Petition No. 129 of 2004 filed by the Appellant. The

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1 AIR 1981 Himachal Pradesh 47

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allegations made in the said Petition can be summarised as under:-

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(A) After the marriage, the Respondent disclosed to the Appellant that she was in love with another person. However, her father and brother did not approve her marriage with the said person and therefore, the Respondent has married to the Appellant against her wishes. It is alleged that the Respondent did not allow the Appellant to even touch her;

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(B) The Respondent used to give threats to the Appellant as set out in paragraph 4 of the Petition;

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(C) On 19.02.2002, when Appellant took Respondent to the hospital, it was revealed that the Respondent was pregnant. When the Appellant questioned her, the Respondent and her brother brought goondas and threatened to kill the Appellant;

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(D) On 09.03.2002, on her own, the Respondent left the matrimonial home and thereafter, lodged FIR alleging commission of offence punishable under Section 498-A of the IPC against the Appellant and his family members;

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(E) On 25.04.2002, Advocate's notice was served by the Appellant to the Respondent calling upon her to give divorce.

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8] We have perused the averments made in the present petition filed in the year 2008. Paragraph 3 of the present petition is reproduction of some of the allegations made in paragraph 3 of the earlier petition. In paragraph 4 of the present Petition, it is reiterated that the Respondent left matrimonial home on 09.03.2002 and therefore a notice dated 28.04.2002 was issued by the Advocate for the Appellant to the Respondent which was replied on 17.05.2002. It is alleged that a false complaint under Section 498-A of the Indian Penal Code was lodged by the Respondent. In paragraph 5, it is alleged that the parties are residing separately from the year 2002 and in fact, the Respondent has deserted the Appellant. In paragraph 8, it is stated that earlier petition no. 129 of 2004 filed by the Appellant was dismissed for default and not on merits.

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9] Perusal of the present petition of the year 2008 shows that the Appellant has not pleaded any cause of action which has arisen after filing of the first petition or after the dismissal of the first petition. On plain reading of the petition, the entire cause of action pleaded in the present petition is the same as the cause of action on the basis of which the earlier petition was filed. Order dated 03.09.2004 passed by the Family Court in earlier Petition No. 129 of 2004 records that when the petition was called out, the Appellant was absent. The Respondent was present along with her Advocate

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and therefore, an order was passed under Rule 8 of Order IX of the said Code dismissing the said Petition for non prosecution. In view sub-section 1 of Section 10 of the Family Court Act, 1984, the provisions of the said Code are applicable to the petitions filed under the said Act before a Family Court.

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10] Rule 9 of Order IX of the said Code bars a fresh suit in respect of the same cause of action which is pleaded in the earlier suit which is dismissed under Rule 8 of Order IX. In the present case, Rule 9 of Order IX will squarely apply as the cause of action for filing both the petitions is the same.

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11] As far as the decision of Himachal Pradesh High Court in the case of Smt. Panno (supra) is concerned, the learned Judge of the Himachal Pradesh was dealing with a case where a decree was sought on the ground of nullity. In paragraph 8 of the decision, the learned Single Judge of Himachal Pradesh observed that in case of a void marriage, it is not the declaration by a court of law which makes the marriage void. In paragraph 12, it is observed that void marriage casts a cloud on the status of a person and so long as the cloud remains, there is a continuous cause of action. In paragraph 9, the learned Judge observed that if cause of action for filing earlier petition is a particular act of adultery on the part of the opposite party, it will not be available to the petitioner after the Petition is

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dismissed under Rule 8 of Order IX. However, a subsequent similar act of adultery will give rise to a fresh cause of action and therefore, the subsequent Petition will be maintainable. In the present case, no act or omission on the part of the Respondent is pleaded of a date after the dismissal of the earlier petition and therefore, a subsequent petition cannot be said to be on a different cause of action. There is no pleading in the subsequent petition that there is a continuing cause of action available to the Appellant. Therefore, we see no error in the view taken by the learned Judge of the Family Court that the subsequent petition filed by the Appellant was barred by in view of Rule 9 of Order IX of the said Code.

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12] Now, we turn to Civil Application No. 194 of 2012. By the said application, amendment of the divorce petition filed by the Appellant is sought by incorporating paragraph 4(a). It is merely alleged in the proposed amendment in paragraph 4(a) that the conduct of the Respondent after dismissal of the petition in the year 2004 was causing continuous mental and physical cruelty to the Appellant. We find from the averments made in the Civil Application, it is not the case of the Appellant that after dismissal of the earlier petition, the cohabitation between the parties was resumed. Moreover, material particulars of the alleged conduct of the Respondent are not pleaded. Taking the proposed amendment as it is, it will not save

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the petition filed by the Appellant from the applicability of bar under Rule 9 of Order IX of the said Code as even under the proposed amendment, existence of any cause of action arising subsequent to dismissal of the earlier petition has not been specifically pleaded. Hence, there is no merit in the Civil Application.

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13] Though the impugned decree deserves to be confirmed, we

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must make it clear that the impugned decree and the affirmation thereof by this Court will not prevent the Appellant from filing a fresh proceedings on the basis of the cause of action, if any, which has arisen subsequently.

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14] Subject to what is observed above, we pass the following order:

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I. Family Court Appeal No. 97 of 2011 is hereby dismissed;

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II. Civil Application No. 194 of 2012 is hereby dismissed;

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III. There will be no order as to costs.

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(M. S. SONAK, J.)

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(A. S. OKA, J.)

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Chandka

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Devendra Gopinand Ughade v. Vijaya Devendra Ughade

Case brief

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Devendra Gopinand Ughade v. Vijaya Devendra Ughade

Case brief

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