Regarding divorce
Rinku BARDHAN
(Querist) 05 January 2018
This query is : Resolved
I applied for divorce & my husband filed restitution of conjugal rights thereafter i.e. after receiving the divorce notice under same court. Will it b rejected u/s 10 CPC? Kindly suggest.
Ms.Usha Kapoor
(Expert) 05 January 2018
Most likely it may be acceptd for the below given reasons in the link
. The next argument of the Appellant is that there is marked difference between the power of transfer and that of consolidation of trial of two different petitions. This argument is in the context of observations made by the learned Single Judge in paragraph-5 of the impugned order. That observation however, will have to be understood in the context, in which it has been made. The learned Single Judge has made that observation with reference to the dictum of the Apex Court in Guda Vijaylaxmi's case(supra), in which the issue was not only one of transfer of petition but also of consolidation of trial of both the petitions. Be that as it may, the contention of the Appellant is of no avail having already concluded that there is ample power with the Family Court to consolidate trial of two separate petitions between the same parties, even if totally different reliefs were claimed by them. If both the parties were to claim relief under section 10 and/or section 13 of the Hindu Marriage Act, obviously that situation will be covered by section 21A of the Hindu Marriage Act. Suffice it to observe that the fact that there is no express provision for consolidation of two separate petitions between the parties pending in the same court for entirely different reliefs such as restitution of conjugal rights, divorce and judicial separation does not mean that the Family Court is not competent to pass such order in exercise of section 151 of the Code. As aforesaid, there is nothing to suggest that that power of the Family Court has been inhibited or diluted by any statutory provision.
16. Reliance was placed by the Counsel for the Appellant on the decision in the case of Durgesh Sharma(Supra). We fail to understand as to how this decision would be relevant to answer the controversy on hand. In that case, short question of law considered by the Apex Court was as to the power, authority and jurisdiction to transfer suits/appeals/other proceedings by a High Court from one Court subordinate to another Court subordinate to another High Court. It is in that context the Apex Court has observed that on plain reading of old section 25 of the Code, its application was very much limited. Keeping in mind the amended section 25 of the Code, the Apex Court opined that on the application of a party, the court should pass an appropriate order of transfer. Further, section 25 is a self contained code.
Even in this decision, the Apex Court had occasion to consider the opinion of Single Judge of our High Court in Priyavari Mehta's case(supra), which was pressed into service in support by the Appellant. The Apex Court however, answered the controversy before it in paragraphs-76-77 and rejected the argument that section 23(3) of the Code stood deleted or superceded by the Section 25 of the Code. It was submitted that the parties must be left to choose forum either under section 23(3) or 25 of the Code.
This contention has been rejected. Be that as it may, we fail to understand as to how the exposition in the said decision will be of any avail to the case on hand where the Application preferred by the Respondent wife in the present case was not for transfer of any case but for consolidation of trial of two petitions pending in the same court. As aforesaid, that order could be passed by the Family Court in exercise of its inherent power under section 151 of the Code.
17. That takes us to the another Judgment relied by the Appellant in the case of Rajaprolu Rajyalakshmi V/s. Rajaprolu Ravindranath Sarma[2003 AI HC 4131(AP). In that case, the Andhra Pradesh High Court went on to hold that section 21A can be invoked under the specified circumstances mentioned in that provision in respect of proceedings under section 10 and 13 of the Act. For the reason already recorded, this decision is of no avail to the Appellant. Reliance is also placed on the decision of Priyavari Mehta's case(supra). As observed earlier, said decision has been considered by the Apex Court in the case of Guda Vijayalakshmi(supra) as well as Durgesh Sharma(supra). Accordingly, even this decision will be of no avail to the Appellant.
18. The learned Single Judge has relied on the observations in the case of Kalpana Patil(supra). In that case, the wife challenged the order passed by the lower Court rejecting her application for stay of the proceedings filed by the husband under section 10 of the CPC. This Court in paragraph-6 opined that since the parties to both the proceedings were the same i.e. husband and wife and one petition is filed by wife for divorce on the ground of cruelty whereas another petition was filed by the husband for restitution of conjugal rights on the ground of desertion, therefore, evidence to be led would be almost common in both the proceedings. It then noticed that both the petitions were pending before the same Court. In the circumstances, the High Court was of the view that it would be in the interest of justice that both the proceedings are tried and decided together. In cases where the defence of the wife in the petition for restitution of conjugal rights filed by the husband would invariably be her case in the case of petition filed by her for divorce. Besides, denying the allegations in the petition for divorce filed by the wife, the husband would reiterate his case stated by him in the petition for restitution of conjugal rights. In other words, the defence of both sides would be overlapping and common to a greater extent in the respective petitions. Naturally therefore, evidence to be led by the parties would be common.
In such a situation the Family Court instead of entertaining the request of the husband to stay the subsequent Petition filed by the wife for relief of divorce ought to consider it proper to consolidate trial of both the petitions. That approach would obviously subserve the larger interest of all concerned including to avoid multiplicity of trial, delay and conflict in decision on the same matters. As a consequence, the order as passed in exercise of inherent power of the Court to consolidate trial of two petitions in the fact situation of the present case, is unexceptionable. It has been rightly upheld by the learned Single Judge.
19. We have no hesitation in taking the view that the Family Court has ample powers to order consolidation of trial of two petitions pending before it between the same parties even if the same were claiming entirely different reliefs. Such power can be exercised with reference to the inherent powers under section 151 of the Code. That power is in no way impacted by provisions such as section 21A of the Hindu Marriage Act.
20. For the reasons already recorded, we have no hesitation in upholding the order of the Family Court of passing discretionary order in the ends of justice in favour of the Respondent wife in the fact situation of the present case.
Since we have taken the view that there is inherent power in the Family Court to consolidate the trial of two petitions pending before it between the same parties even though different reliefs are claimed in the concerned petitions, and if that inherent power were to be exercised in a given case, the question of entertaining application for stay of subsequent Petition under section 10 of the Code would not arise. The Apex Court in the case of Pukhraj D. Jain vs. G.Gopalakrishna [(2004) 7 SCC 251 had occasion to observe that mere filing of an application under section 10 CPC does not in any manner put an embargo on the power of the court to examine the merits of the matter. It has observed that the object of the section is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of same matter in issue. That Section enacts merely a rule of procedure and a decree passed in contravention of the said provision is not a nullity. It has further further observed that it is not for a litigant to dictate to the court as to how the proceedings should be conducted, whereas it is for the court to decide what will be the best course to be adopted for expeditious disposal of the case.
21. In the case of Indian Bank Vs. Maharashtra State Coop.
Marketing Federation Ltd.[(1998)5 SCC 69] while dealing with the purport of section 10 of the Code, the Apex Court observed that it is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue.
Significantly, it went on to observe that the provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the latter suit nor does it create any substantive right in the matters. It is not a bar to the passing of interlocutory orders such as "an order of consolidation" of the subsequent suit with earlier suit or appointment of receiver or injunction, attachment before Judgment. Thus understood, once Court were to exercise the discretion of consolidation of the earlier as well as subsequent suit and direct joint trial of both the suits, relief of staying the subsequent suit would be unavailable. In that sense, a relief of stay of subsequent suit and the relief of consolidation of two suits are antithesis to each other. In this view of the matter, the Family Court had rightly rejected the application preferred by the Appellant Exh.5 praying for stay of petition instituted by the Respondent wife for relief of divorce.
22. Accordingly, this appeal fails being devoid of merits. Hence, the same is dismissed with costs quantified at Rs.5,000/- to be paid to the Respondent. Ordered accordingly.
CHIEF JUSTICE
R.Ramachandran
(Expert) 05 January 2018
The petition filed by the husband for RCR will not be rejected u/s. 10 CPC. Rather, both the divorce petition and petition or RCR will be tried together. Both the parties would be permitted to lead evidence of their respective cases. Thereafter the court will decide.
Vijay Raj Mahajan
(Expert) 05 January 2018
Divorce u/s 13 HMA and Restitution of Conjugal rights u/s 9 of the HMA are two issues opposite to each other. The wife seeks divorce but husband wants to restore conjugal relationship. The Court will decide both petitions together by clubbing them based on the evidence lead by both parties decide both petitions. No question of the stay application of section 10 CPC in this case as both petitions are dealing two different issues. The case law as mentioned above by one of the expert too speaks of the same what I state here, clubbing of both petitions by the Family Court and not staying the subsequent petition u/s 10 CPC.
R.Ramachandran
(Expert) 05 January 2018
Unfortunately, the said Expert, after quoting the decision, has said: "Most likely it may be rejected for the below given reasons in the link."!!!
N.K.Assumi
(Expert) 05 January 2018
Agree with the experts, if it is in the interest of all family members in the long run and will bring peace, harmony and happiness to the spouses,after examining the evidences led by the parties. RCR will prevails over Divorce or Divorce over RCR..
Dr J C Vashista
(Expert) 05 January 2018
Both the case(s) will run concurrently which do not attract res judicata. I agree with exert Mr. R. Ramachandran and Sh. Vijay Raj Mahajan.
Dr J C Vashista
(Expert) 05 January 2018
I could not follow contention as explained in the opinion and advise of expert Mr. N K Assumi, how the case of RCR shall prevail over the other case for divorce after evidence?
Isaac Gabriel
(Expert) 06 January 2018
It is not uncommon that both divorce and RCR is taken for trial simultaneously and orders passed based on the evidences adduced. One supercedig the other will not arise, either in trial or orders.
J K Agrawal
(Expert) 07 January 2018
Section 21A of the HIndu Marriage Act gives proper answer.
Section 21A in The Hindu Marriage Act, 1955
43 [ 21A Power to transfer petitions in certain cases. —
(1) Where—
(a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13; and
(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State,
the petitions shall be dealt with as specified in sub-section (2).
(2) In a case where sub-section (1) applies,—
(a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court;
(b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.
(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.]
