please advice
Nirupom Dutta
(Querist) 06 May 2011
This query is : Resolved
Husband filled a divorce petition against his wife seeking divorce on the cruelty and desertion ground in a family court in the year 2007. In between 2008-09 wife’s maternal brother approaches to husband and suggesting him to withdraw the case and convinced the husband by saying that they (i.e maternal brother and wife’s family member will amicable settled the matter within 4 wall of his their house. And in furtherance of such discussion a withdrawal petition was prepared by her brother writing that the court has no jurisdiction to decide this suit and therefore petitioner wish to withdraw the case. Although the court has jurisdiction because the husband (petitioner) has been residing within the court’s jurisdiction since 5 years past from filling the suit and both husband and wife was also residing when such occurrence (desertion by wife) took place. No stapes are taken by wife or by her family member in furtherance of their promise. Even, whenever husband tries to correspond with wife the family member of wife neglected husband by saying that they don’t want to talk with him.
NOW the case is in argument stage. The petitioner also does not took any step for notpressing the said withdrawal petition, during this period witnesses are recorded for petitioner husband.
NOW JUDGE told him that as you filled the withdrawal petition, court will dismiss the case on that ground.
PLEASE advice on above matter. Is there any ruling of S.C in this matter that a petition can notpress at argument stage?
Thank you.
Devajyoti Barman
(Expert) 06 May 2011
No citation is required.
If you do not want to withdraw the case then you can simply not press the withdrawal petition.
Nirupom Dutta
(Querist) 06 May 2011
Thank you Devajyoti sir.
but the judge of family court told him that as the case is now in argument stage you can not not press the petition.
so if you provide any citation it will be very helpful for us.
Kanhaiya Singh
(Expert) 08 May 2011
Hi Nirupam,
Since no order was passed on the withdrawal petition, a petition to withdraw the said withdrawal petition should be filed by the petitioner. Recently, SC on 12.01.2011 in Civil Appeal No. 984 of 2006 "Rajendra Prasad Gupta v/s Prakash Chandra Mishra and others" held -
"Section 151 CPC - Withdrawal of suit - There is no bar in filing application for withdrawal of withdrawal petition - Every procedure is permitted to court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted - Appeal allowed." The said judgment has been passed by Hon'ble Justices Markandey Katju and Gyan Sudha Mishra.
You may get the said ruling free of cost on the internet.
- Kanhaiya Singh
Nirupom Dutta
(Querist) 08 May 2011
thank you kanhaiya singh sir. this is very helpful for us.
