Judgment:
FAO-M-289 of 2008 (O&M) & 1 FAO-M-208 of 2011 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO-M-289 of 2008 (O&M) Date of decision : 15.05.2014 Chander Mohan Sharma ........Appellant Versus Smt.Devi Sharma .........Respondent FAO-M-208 of 2011 (O&M) Date of decision : 15.05.2014 Chander Mohan Sharma ........Appellant Versus Smt.Devi Sharma .........Respondent Coram: HON’BLE MR.JUSTICE S.S.SARON HON'BLE MR.JUSTICE R.P.NAGRATH Present:- Mr.Rahul Gautam, Advocate for the appellant.
Mr.S.K.Monga, Advocate for the respondent.
****** S.S.SARON, J.
This order will dispose of FAO-M-208 of 2011 and FAO-M- 289 of 2008, as parties are the same in both the appeals and the appeals relate to inter se matrimonial dispute between them.
The marriage between the parties was solemnized on 23.01.1998.
The appellant-husband is working in the Ministry of External AffaiRs.Government of India and was posted as a Stenographer to the Ambassador of India at Surinam in South America.
The parties after marriage went to Surinam on 08.09.1998.
They returned from abroad on 18.02.1999.
According Anil Kumar 2014.05.23 11:05 I attest to the accuracy and integrity of this document FAO-M-289 of 2008 (O&M) & 2 FAO-M-208 of 2011 (O&M) to the appellant, the respondent-wife left her matrimonial home on 18.02.1999 the day they returned from abroad.
According to the respondent-wife she was in fact abandoned by the appellant.
The appellant however, on 04.05.1999 filed a petition seeking nullity of the marriage between the parties.
It was alleged that the marriage between them was incomplete as during the 'Saptpadi' ceremony (that is, the taking of seven steps by the bridegroom and bride jointly before the sacred fire).the respondent-wife became unconscious and only four 'pheras' were performed.
Therefore, the marriage was not binding between the parties.
The appellant- husband also made allegations of mental disorder in respect of the respondent-wife.
The petition of the appellant-husband was allowed by the learned Additional District Judge, Sonepat on 13.10.2001 on the ground that the respondent-wife had been suffering from mental disorder.
The respondent-wife aggrieved against the judgment and decree dated 13.10.2001 of the learned Additional District Judge, Panipat, filed FAO No.M-208 of 2001 in this Court.
The appeal of the respondent-wife was allowed by this court on 14.05.2003 and the judgment and decree dated 13.10.2001 of the Additional District Judge, Sonepat was set aside.
The appellant-husband then filed LPA No.230 of 2003 in this court, which was dismissed on 26.07.2005 being not maintainable.
Aggrieved against the same, the appellant filed SLP (C.C.10907-10908 of 2005) in the Supreme Court of India which was dismissed on 02.12.2005.
It may be noticed that after the appellant had filed his petition on 04.05.1999 seeking annulment of the marriage, the Anil Kumar 2014.05.23 11:05 I attest to the accuracy and integrity of this document FAO-M-289 of 2008 (O&M) & 3 FAO-M-208 of 2011 (O&M) respondent wife lodged FIR No.22 dated 20.05.1999 against the appellant, his mother and sister alleging commission of offences punishable under Section 406 and 498-A Indian Penal Code ('IPC'-for short).In the meanwhile, the appellant on 01.06.2005 filed another petition (HMA No.33 of 2005) seeking dissolution of the marriage between the parties on the ground of desertion.
The said petition of the appellant was dismissed by the learned Additional District Judge, Sonepat on 23.08.2008.
Aggrieved against the same, the appellant has filed FAO No.M-289 of 2008.
During the pendency of the FAO No.M-289 of 2008, the appellant his mother and sister were acquitted on 27.10.2009 by the learned Chief Judicial Magistrate, Sonepat in FIR No.22 dated 20.05.1999 registered at Police Station Women, Sonepat.
On acquittal, the appellant on 10.08.2010, filed another petition (HMA No.42 of 2010) seeking divorce on the ground of cruelty.
The said petition has been dismissed by the learned Additional District Judge, Sonepat vide his order dated 28.03.2011 on the ground of its maintainability.
It was held that in view of the earlier petition filed by the appellant on the ground of desertion, the subsequent petition was not maintainable in view of the provisions of Order 2 rule 2 of the Code of Civil Procedure ('CPC'-for short).Accordingly, against the said order dated 28.03.2011, the appellant has filed FAO No.M-208 of 2011.
During the couRs.of hearing efforts were made to amicably resolve the matter one way or the other between the parties, however, these remained inconclusive.
The case has been taken up for hearing today.
Learned counsel for the appellant Anil Kumar 2014.05.23 11:05 I attest to the accuracy and integrity of this document FAO-M-289 of 2008 (O&M) & 4 FAO-M-208 of 2011 (O&M) submits that he may be allowed to withdraw FAO No.M-289 of 2008 which arises out of the petition that was filed on the ground of desertion.
Learned counsel for the respondent submits that he has no objection to the same.
Accordingly, FAO No.M-289 of 2008 is dismissed as withdrawn.
Learned counsel for the appellant has submitted that in fact the petition filed on the ground of cruelty on 10.08.2010 has wrongly been dismissed on the ground of its maintainability being barred by Order 2 Rule 2 CPC.
It is submitted that the same has been filed on a fresh and separate cause of action that accrued in favour of the appellant after his acquittal in the criminal case on 27.10.2009.
Therefore, according to the learned counsel for the appellant the bar of Order 2 Rule 2 CPC is not attracted.
On going through the said petition that has been filed seeking divorce between the parties on the ground of cruelty, it is noticed that the cause of action has not been specifically pleaded in the petition that was filed.
Therefore, the said petition that has been filed for grant of divorce on the ground of curelty does not disclose a cause of action.
In the circumstances, learned counsel for the appellant submits that there is a formal and technical defect in the frame of his petition and in terms of Order 23 Rule 1(3) CPC, the petition as filed is likely to fail by reason of some formal defect; besides, the said defect constitutes a sufficient ground for allowing the petitioner to institute a fresh petition for the same subject matter of the Anil Kumar 2014.05.23 11:05 I attest to the accuracy and integrity of this document FAO-M-289 of 2008 (O&M) & 5 FAO-M-208 of 2011 (O&M) petition and on the same cause of action.
It is submitted that the appeal as also the petition for divorce that has been filed on the ground of cruelty may be allowed to be withdrawn and the appellant be granted permission to file a fresh petition on the same subject matter and cause of action.
Learned counsel for the respondent has no objection to the same.
After considering the entire matter we are satisfied that the petition, which has been filed for seeking divorce on the ground of cruelty must fail by reason of some formal defect; besides the said defect constitutes a sufficient ground for allowing the appellant to institute a fresh petition for the same subject matter and on the same cause of action.
Normally a petition/suit that has been filed at the initial trial Court stage is not to be allowed to be withdrawn at the appellate stage especially when the petition stands decided against the appellant for the reason that the respondent cannot be and is not liable to be deprived of the fruits of the decree that have ripened in his favour.
In the facts and circumstances of the present case it may, however, be noticed that the petition seeking divorce on the ground of cruelty as filed does not disclose a cause of action.
Therefore, the petition is likely to fail and in fact the petition may be rejected for failure to disclose a cause of action in terms of the provisions of Order 7 Rule 11(a) CPC.
The learned trial Court even otherwise has not decided the case on merit and has dismissed the petition on the ground of its maintainability.
Besides, the learned counsel for the appellant has very fairly accepted that he has no objection to the withdrawal of the petition initially filed as also the Anil Kumar 2014.05.23 11:05 I attest to the accuracy and integrity of this document FAO-M-289 of 2008 (O&M) & 6 FAO-M-208 of 2011 (O&M) appeal.
In the facts and circumstances it would be just and expedient if the appellant is permitted to withdraw the petition initially filed in the trial Court for getting divorce on the ground of cruelty with liberty to him to file a fresh one on the same subject matter and cause of action.
Accordingly, the petition initially filed for divorce on the ground of cruelty which is subject matter of FAO No.M-208 of 2011 is allowed to be withdrawn and liberty is granted to the appellant to file a fresh petition on the same cause of action and subject matter.
Resultantly the appeal (FAO No.M-208 of 2011) filed by the appellant has been rendered infructuous and is also allowed to be withdrawn.
In the circumstances, FAO No.M-289 of 2008 is dismissed as withdrawn and FAO No.M-208 of 2011 is dismissed as withdrawn having been rendered infructuous.
There shall be no order as to costs.
In case a petition is filed by the appellant for seeking divorce before the learned District Court, the learned Court, it is hoped would decide the same as expeditiously as possible and preferably within a period of one year of its filing as the parties have been litigating for quite a long while.
(S.S.SARON) JUDGE (R.P.NAGRATH) 15.05.2014 JUDGE anil Note: Whether to be referred to reporters : Yes/No Anil Kumar 2014.05.23 11:05 I attest to the accuracy and integrity of this document FAO-M-289 of 2008 (O&M) & 7 FAO-M-208 of 2011 (O&M) Anil Kumar 2014.05.23 11:05 I attest to the accuracy and integrity of this document