Dinesh Kumar Vs. Smt. Santosh Devi

Dinesh Kumar vs Smt. Santosh Devi

Disposition Appeal dismissed Court Allahabad Decided Oct 06, 2006

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https://sooperkanoon.com/case/493898

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Citation: sooperkanoon.com/493898
Court: Allahabad High Court
Judge: Umeshwar Pandey, J.
Decided On: Oct 06, 2006
Subject: Family
Disposition: Appeal dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- INDIAN PENAL CODE, 1860 [C.A. No. 45/1860]. Section 302; [M.C. Jain, R.C. Deepak & K.K. Misra, JJ] Murder Plea as to accused being minor School register and transfer certificate not proved before Court according to law Held, It has to be ignored and question of age is to be determined on other evidence and cir...

Key legal issue: Family
Outcome / disposition: Appeal dismissed

Parties & Advocates

Appellant / Petitioner

Dinesh Kumar

Respondent

Smt. Santosh Devi

Legal References

Reported In: AIR2007All30

Excerpt

- indian penal code, 1860 [c.a. no. 45/1860]. section 302; [m.c. jain, r.c. deepak & k.k. misra, jj] murder plea as to accused being minor school register and transfer certificate not proved before court according to law held, it has to be ignored and question of age is to be determined on other evidence and circumstances surfacing on record. age determined on the basis of x-ray plates and report prepared by c.m.o., is the correct age of accused. accused was declared to be child on the date of commission of offence of murder. however, considering fact that now accused was around 41 years, he cannot be sent to approved school. accused was directed to pay fine of rs.25,000/- under section 302 i.p.c., amount of fine was directed to be paid as compensation to wife of deceased. mohammad - the respondent was obliged to file written statement after she had put in appearance in the case but since she failed to do the same, the trial court has very rightly pronounced the ex parte judgment in the case and decreed the suit as such......dated 5-8-2006 whereby the decree of divorce passed by the trial court in favour of the appellant has been set aside and the case has beeen remanded for further hearing and disposal.3. learned counsel for the appellant has tried to impress upon the fact that the respondent defendant in the divorce petition did not file her written statement to contest it and as such, the suit had to be decreed ex parte under order 8, rule 10, cpc. the respondent was obliged to file written statement after she had put in appearance in the case but since she failed to do the same, the trial court has very rightly pronounced the ex parte judgment in the case and decreed the suit as such. learned counsel has further submitted that there was no justification on the part of the lower appellate court to have set aside that judgmet simply because there was non-compliance on the part of the appellant, of the directions given under section 24 of hindu marriage act.4. a perusal of the impugned judgment shows that the order under section 24 of hindu marriage act was passed by the trial court on 24-12-2004 directing the appellant to deposit the litigation expenses amounting to rs. 2,000/- and pay the maintenance of rs. 5,000/- per month to the respondent-wife but admittedly that order had not been complied with. in the revision filed against that order no stay order was obtained. therefore, there has been obvious non-compliance of the said order throughout. in case, such litigation expenses are not paid to the wife, the court cannot compel her to file the written statement or to pronounce ex parte judgment under order 8, rule 10, cpc in the suit. on the contrary what was legally required for the trial court was that it should have dismissed the divorce petition itself for non-compliance of its order dated 24-12-2004. the defendant-wife is not supposed to be in a position to file the written statement and contest the suit in such circumstances when the litigation expenses, as directed by the.....

Full Judgment

ORDER

Umeshwar Pandey, J.

1. Heard learned Counsel for the parties.

2. This appeal arises out of the judgment and order dated 5-8-2006 whereby the decree of divorce passed by the trial Court in favour of the appellant has been set aside and the case has beeen remanded for further hearing and disposal.

3. Learned Counsel for the appellant has tried to impress upon the fact that the respondent defendant in the divorce petition did not file her written statement to contest it and as such, the suit had to be decreed ex parte under Order 8, Rule 10, CPC. The respondent was obliged to file written statement after she had put in appearance in the case but since she failed to do the same, the trial Court has very rightly pronounced the ex parte judgment in the case and decreed the suit as such. Learned Counsel has further submitted that there was no Justification on the part of the lower appellate Court to have set aside that judgmet simply because there was non-compliance on the part of the appellant, of the directions given under Section 24 of Hindu Marriage Act.

4. A perusal of the impugned judgment shows that the order under Section 24 of Hindu Marriage Act was passed by the trial Court on 24-12-2004 directing the appellant to deposit the litigation expenses amounting to Rs. 2,000/- and pay the maintenance of Rs. 5,000/- per month to the respondent-wife but admittedly that order had not been complied with. In the revision filed against that order no stay order was obtained. Therefore, there has been obvious non-compliance of the said order throughout. In case, such litigation expenses are not paid to the wife, the Court cannot compel her to file the written statement or to pronounce ex parte judgment under Order 8, Rule 10, CPC in the suit. On the contrary what was legally required for the trial Court was that it should have dismissed the divorce petition itself for non-compliance of its order dated 24-12-2004. The defendant-wife is not supposed to be in a position to file the written statement and contest the suit in such circumstances when the litigation expenses, as directed by the Court, had not been paid to her by the petitioner-husband. In such situation, if the Court proceeds to pronounce ex parte judgment under Order 8, Rule 10, CPC against the wife, it would be nothing but doing mockery with the procedure provided for that purpose. In this view of the matter alone the lower appellate Court has interfered with the order of the trial Court and has validly set aside the judgment and decree of the trial Court. I do not find any infirmity in the order passed by the Court below as to occasion interference against the same by this Court.

5. The appeal is without substance and is hereby dismissed.

Same Court & Year Allahabad · 2006 Same Parties Dinesh Kumar vs Smt. Santosh Devi Same Subject Family Same Judge Umeshwar Pandey, J.

Family