Husband challenged the Family Court's dismissal of his application to reject the wife's divorce petition as barred by res judicata due to a prior USA divorce decree. The High Court held that res judicata cannot be decided on plaint averments alone and dismissed the writ petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 23689 OF 2022 (GM-FC)
BETWEEN:
SURESH N SHETTY S/O LATE SRI NARAYAN SHETTY AGED ABOUT 52 YEARS R/AT NO.2131 N KIRBYWOOD TRAIL GRAND PRARIE TX 75052 U.S.A.
…PETITIONER
(BY SRI. PARASHURAM A L.,ADVOCATE)
AND:
Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA
SHARMILA K D/O LATE SRI STEPHEN D SOUZA AGED ABOUT 49 YEARS R/AT DOOR NO.9-30 SAI KRIPA NEAR G H P SCHOOL NALYA PADAVU SHAKTINAGAR, MANGALURU -575016 D K
…RESPONDENT (BY SMT. MEDINI RAO.,ADVOCATE FOR; SRI. ANNU BHARDWAJ., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN M.C NO 400/2021 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, D.K, MANGALURU.SET ASIDE ORDER DATED 15.07.2022 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, D.K, MANGALURU ON I.A. NO. VII IN M.C.NO 400/2021.(ANNEXURE-A)
NC: 2024:KHC:12493 WP No. 23689 of 2022
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the order passed in I.A. No.VII in M.C. No.400/2021, dated 15.07.2022 the husband is
before this court. Parties are referred to as the wife and husband for the sake of convenience.
obtained a mutual consent divorce in USA in the year 2013 and having kept quiet, in the year 2021 the wife had initiated the divorce proceedings in India and the same is barred by res-judicata. It is submitted that only with an intention to harass the husband she has filed this petition. The respondent/wife has filed her objections before the court below wherein it is denied that any such waiver application has been filed by the wife and that the divorce was obtained by the husband on suppression, misrepresentation and on the grounds of fraud. As such the said decree is not binding on her and the application filed under Order-VII Rule-11 of CPC is liable to be rejected.
submissions and the case of both the parties and having discussed the scope of Order-VII Rule-11 of CPC and also the judgment of the Hon'ble Apex Court in the case of SRIHARI HANUMANDAS TOTALA vs. HEMANT
NC: 2024:KHC:12493 WP No. 23689 of 2022
VITHAL KAMATH1 , wherein the Hon'ble Apex Court while discussing the scope of Order-VII, Rule-11(d) of CPC has held that –
“an adjudication of the plea of res-judicata requires consideration of the pleadings, issues and decision in the “previous suit” such a plea will be beyond the scope of Order-7, Rule11(d) where only the statements in the plaint will have to be perused”
Accordingly, the court below had dismissed the application. Aggrieved thereby the husband is before this Court.
submits that the having obtained a mutual decree of divorce before the courts at USA, now it is not open for the wife to file a petition for divorce. It is submitted that the said relief are barred by res-judicata and also with an intention to harass the husband the wife has come up before this Court. It is submitted that when the divorce
1 Civil Appeal No. 4665/2021
was obtained in the year 2013 and they are staying separately till date, she has filed the petition in the year 2021 and he submits that even on the ground of latches also she cannot maintain a petition before this Court.
for the respondent/wife had relied on the following judgments:
iv) Delhi High Court’s judgment in the case of HARMEETA SINGH vs. RAJAT TANEJA5
2 1991 (3) SCC 451
3 AIR 2009 SC 2254
4 2014 AIR CC 2231 (P&H)
5 102 (2003) DCT 822
is obtained by fraud is not binding on the wife and the ground on which the divorce is granted is on the ground of Insupportability and it is submitted that such a ground is not available under the Hindu Marriage Act. Hence, the court below had rightly dismissed the petition filed under Order-VII, Rule-11 of CPC.
“11. Rejection of plaint.
The plaint shall be rejected in the following cases-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the
Court to supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;
the plaint to be barred by any law.
e) where it is not filed in duplicates
f) where plaintiff fails to comply with provision of rule 9.”
Rule-11 of CPC, as per the grounds enumerated from clause (a) to (f). According to the husband they have already obtained mutual consent divorce from the courts at USA and the second petition is not maintainable as it is barred by res-judicata. The wife denies the same by stating that it has been obtained by fraud and misrepresentation of facts. A bare perusal of Order-VII, Rule-11 of CPC shows that the grounds that are raised by the husband for rejection of the plaint do not find place in the same and while deciding an application seeking rejection of plaint the court can only look at the plaint and nothing else when all the grounds that are raised by the husband cannot be decided only looking at the plaint
averment and for that the parties needs to adduce evidence unless and until the Court hears the matter on
merits of it, All the issues cannot be decided by the court on the ground raised by the petitioner that it is barred by res-judicata, the pliant cannot be rejected.
Accordingly, the Writ Petition is Dismissed and
All pending I.A.s, stands closed.
SD/JUDGE
JJ
List No.: 1 Sl No.: 20
1 issue framed by the court
Whether the wife's divorce petition is barred by res judicata given an earlier USA divorce decree, warranting rejection under Order VII Rule 11 CPC.
Colour shows how this judgement treated each authority
Srihari Hanumandas Totala vs. Hemant Vithal KamathRelied on
Civil Appeal No. 4665/2021
Narasimha Rao vs. Venkata LakshmiReferred
1991 (3) SCC 451 · Who else cites this
Vishnu Dutt Sharma vs. Manju SharmaReferred
AIR 2009 SC 2254 · Who else cites this
Roopa vs. Anitha ChowdaryReferred
2014 AIR CC 2231 (P&H) · Who else cites this
Harmeeta Singh vs. Rajat TanejaReferred
102 (2003) DCT 822
3 provisions across 2 enactments
Suresh N Shetty
Sharmila K
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
