Partly allowed

Suresh Kumar.P v. Praveena Odunghat

Kerala HC11 Feb 2013OP (FC)/491/2013

Case brief

AI extract

What is this about?

The High Court, in a writ petition under Article 227, set aside the Family Court's order rejecting the petitioner's leave to withdraw a divorce petition. The High Court invoked Order XXIII Rule 1 CPC, allowing withdrawal but refusing liberty to sue again, and directed the continuation of the counter-claim trial.

What did the court decide?

Set aside the dismissal of IA No.38/2013 and allow the withdrawal, but refuse liberty to institute fresh suit; directed below to proceed with counter-claim trial.

Suresh Kumar.P Vs Praveena Odunghat — Matrimonial and Divorce | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE P.D.RAJAN

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MONDAY, THE 11TH DAY OF FEBRUARY 2013/22ND MAGHA 1934

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OP (FC).No. 491 of 2013 (R) --------------------------ORDER OF THE FAMILY COURT, KOZHIKODE IN IA NOS.38/2013, 26/2013 & 52/2013 IN OP NO.592/2011

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PETITIONER(S):

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SURESH KUMAR P., AGED 48 YEARS S/O K.G.MENON (LATE), JASMINE VILLA FAROOK COLLEGE P.O., KOZHIKODE TALUK, PIN-673632.

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BY ADV. SRI.C.P.MOHAMMED NIAS

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RESPONDENT(S):

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PRAVEENA ODUNGHAT D/O.C.B.ARAVINDAKSHAN, "KRISHNAN", 21/169 KALLAI P.O., CALICUT, PIN-673003 NOW RESIDING AT NO.19-01, ELITA PROMENADE, BLOCK A2 J.P.NAGAR, 7TH PHASE, BANGALORE PIN-650078.

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BY ADV. SRI.P.B.KRISHNAN SRI.V.V.SURESH (CAVEATOR)

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 11-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (FC).No. 491 of 2013 (R)

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APPENDIX

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PETITIONER'(S) EXHIBITS:

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EXT.P1	COPY OF THE ORDER DATED 28.10.2011 OF THE SUBORDINATE COURTS OF THE REPUBLIC OF SINGAPORE VIDE PROCEEDINGS DIVORCE NO.3412 OF 2011/E
EXT.P2	COPY OF THE JUDGMENT DATED O8.10.2012 OF THIS HON'BLE COURT IN MA NO.351/2012.
EXT.P3	COPY OF IA NO.38/2013 IN OP NO.592/2011 FILED BY THE PETITIONER HEREIN BEFORE THE FAMILY COURT, KOZHIKODE.
EXT.P4	COPY OF THE COMMON ORDER DATED 18.01.2013 OF THE HON'BLE FAMILY COURT, KOZHIKODE.
EXT.P5	COPY OF IA NO.100/2013 DATED 21.01.2013 FILED BY THE PETITIONER HEREIN BEFORE THE FAMILY COURT, KOZHIKODE.
EXT.P6	COPY OF IA NO.101/2013 DATED 21.01.2013 FILED BY THE PETITIONER HEREIN BEFORE THE FAMILY COURT, KOZHIKODE.

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RESPONDENT'(S) EXHIBITS: NIL

//TRUE COPY//

PA TO JUDGE

BKA

PIUS C. KURIAKOSE

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& P. D. RAJAN, JJ.

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OP (FC) No. 491 of 2013

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Dated this the 11^th day of February, 2013

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J U D G M E N T

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Pius C. Kuriakose, J.

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Under challenge in this original petition filed by the husband under Article 227 of the Constitution of India is Ext.P4 order to the extent the same relates to IA

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No.38/2013 filed by the petitioner.

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The above IA was filed by the petitioner seeking leave to withdraw from OP No.592/2011, an OP which was filed by the petitioner for divorce, with liberty to institute further proceedings. The learned Family Court, under the impugned order, has dismissed the IA taking the view that the above IA is filed without any bonafides. In the OP, Ext.P4 is challenged on various grounds.

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We have heard the submissions of

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Sri.Mohammed Nias, the learned counsel for the

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OP (FC) No. 491 of 2013

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..2..

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petitioner, and those of Sri.P.B.Krishnan, the learned counsel for the respondent.

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Sri.Mohammed Nias drew our attention to Ext.P2 order, whereby divorce once granted by the court below under Section 13 B on the ground of irretrievable break down of the relationship between the parties, was set aside by this Court on the reason that the petitioner was not willing to have such a divorce. It was thereafter that IA No. 38/2013 was filed. According to Sri.Mohammed Nias, the Family Court was bound to allow the IA. Family Court has discretion only in the matter of granting liberty. Sri.Mohammed Nias further submitted that the Family Court has not only dismissed the application, but entertained a belated counter claim filed by the respondent. The learned Family Court is now going ahead with the trial of the above counter claim, which is per se illegal.

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Sri.P.B.Krishnan, the learned counsel for the respondent, per contra, would support the impugned

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..3..

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OP (FC) No. 491 of 2013

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order. According to the learned counsel, the court below has rightly found that the petitioner is playing a game of hide and seek. The petitioner is not at all interested in continuing the matrimonial bond between the parties. Even then, he wants to avoid a decree of divorce for the reason that any decree of divorce will entail him to the consequence of being liable to give one half of his properties in Singapore to the respondent. As regards the counter claim, Sri.Krishnan submitted that it is not correct to say that it is a belated counter claim. The counter claim was always there and the petitioner has now been set exparte in the counter claim and the respondent has already adduced evidence. The respondent is always ready and willing to offer herself for cross-examination.

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We have given our anxious consideration to the rival submissions addressed at the Bar. We have gone through the impugned order. A reading of Order XXIII Rule 1 of the Code of Civil Procedure shows that the

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OP (FC) No. 491 of 2013

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..4..

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plaintiff/petitioner is entitled to abandon his suit or action. The court has discretion only in the matter of granting liberty to institute fresh suit or action. In that view of the matter, we cannot sustain the decision of the court below to dismiss IA No.38/2013 completely.

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We set aside the impugned order to the extent relates to IA No.38/2013. We allow IA No.38/2013. But, we are not inclined to grant liberty to the petitioner as we also feel that the petitioner cannot boast of much bonafides in the matter of filing the IA. Now, coming to the grievance of the petitioner that the counter claim was raised by the respondent at a later stage, we are of the view that the court below should permit the petitioner to file a written statement. Written statement, if any, will be filed by the petitioner within a period of three weeks from today. Thereafter, the court below shall continue the trial, ie., by permitting the petitioner to cross-examine the respondent on the basis of the contentions raised in the written statement filed pursuant to this judgment.

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OP (FC) No. 491 of 2013

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..5..

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Needless to mention that both sides should be permitted to adduce whatever evidence they have for substantiating their rival contentions. The learned Presiding Officer of the Family Court shall expedite matters and once trial starts pursuant to this judgment, the same should be taken up on a day-to-day basis. The time limit till 15.04.2013 already fixed shall be honoured.

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Sd/- PIUS C. KURIAKOSE, JUDGE.

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Sd/- P. D. RAJAN, JUDGE.

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bka/-

Suresh Kumar.P v. Praveena Odunghat

Case brief

What is this about?

What did the court decide?

Suresh Kumar.P v. Praveena Odunghat

Case brief

What is this about?

What did the court decide?

What the court decided

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