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2004 DIGILAW 433 (AP)

K. Neeraja @ Rajani v. K. Narsinga Rao

2004-04-05

GOPALA KRISHNA TAMADA, J.CHELAMESWAR

body2004
( 1 ) (PER Gopala Krishna Tamada, J.) the respondent in O. P. No. 6 of 2000 on the file of the Family Court, Warangal is the petitioner herein. This revision petition is directed against the order dated 17-9-2003 passed by the Judge, Family Court, Warangal in I. A. No. 128 of 2003 in O. P. No. 6 of 2000 filed under Order 7 Rule 11 (d) C. P. C. ( 2 ) THE facts which are not in dispute are as follows: the petitioner herein is the wife of the respondent herein. Originally, the respondent filed O. P. No. 8 of 1997 under Section 13 of the Hindu Marriage Act, 1955 (for short the act ) before the Principal Senior Civil Judge, warangal seeking divorce on the ground of cruelty. The marriage between the parties has taken place on 22-2-1996 and the said o. P. was presented on 12-2-1997 i. e. . within the statutory period of one year. Along with the O. P. he filed an interlocutory application under Section 14 (1) of the Act praying for leave permitting him to present the petition under Section 13 of the Act within the statutory period of one year. However, learned principal Senior Civil Judge, Warangal was not inclined to take it as an exceptional case and accordingly returned the papers on 17-2-1997 for filing after the statutory period. Subsequently, the matter was represented on 25-2-1997 as the prohibition of one year imposed under Section 14 of the Act was over by that time. Thereafter the file was made over to the II Additional Senior Civil judge, Warangal. The petitioner-wife filed an application under Order 7 Rule 11 C. P. C. raising an objection that as it is a matrimonial matter and it should be tried by the Family court but not by the Senior Civil Judge s court. Accepting the said contention, the learned Judge transferred the matter to the family Court and thus it was renumbered as o. P. No. 6 of 2000. When the matter was coming up for cross-examination of the respondent-husband, the petitioner herein again raised an objection stating that originally the O. P. was filed within a period of one year and as such it is not maintainable and accordingly she filed a petition under Order 7 rule 11 C. P. C. and the same was opposed by the respondent-husband. On a consideration of the entire material on record, the Court below rejected the contention put forth by the petitioner-wife and accordingly dismissed the said application. Hence the present revision petition. ( 3 ) HEARD both the learned counsel. ( 4 ) MR. T. S. Anand learned counsel for the petitioner-wife contended before this Court that admittedly the marriage was performed on 22-2-1996 and the O. P. was filed on 12-2-1997 i. e. , within a period of one year and as such it is not maintainable. It is his further contention that the very same petition presented on 12-2-1997 was represented on 25-2-1997 and as such for all purposes the date of presentation shall be taken as 12-2-1997 and if that be so the O. P. as filed by the husband i. e. , the respondent herein is not maintainable. ( 5 ) ON the other hand Mr. C. A. R. Seshagiri rao, the learned counsel for the respondent- husband opposed the said submissions stating that on an earlier occasion, the petitioner herein presented a petition stating that the O. P. is not maintainable as the same is filed before the Senior Civil Judge who is not competent to try the matter as it is a matter to be tried by the Family Court Judge and basing on the said petition the matter was transferred to the Family Court. At that time the petitioner has not raised this objection but at a later stage when the matter is coming up for trial, the petitioner has come forward with this petition only to protract the litigation. It is his further submission that in view of proviso to Section 14 (1) of the Act it is always open for the Court to accept any petition even if it is filed within a period of one year. ( 6 ) IN the instant case according to the learned counsel for the petitioner, the respondent filed I. A. along with the O. P. and instead of deciding the said application the court below simply returned it on 17-2-1997 and thus it necessitated him to represent the matter on 25-2-1997 by which time, the period of one year as envisaged under Section 14 has come to an end. He has also drawn our attention to the judgment of the Orissa High court in Saudamini Lenka @ Mohapatra v. Khageswar Lenka. He has also drawn our attention to the judgment of the Orissa High court in Saudamini Lenka @ Mohapatra v. Khageswar Lenka. ( 7 ) IN the light of the submissions made by both the counsel, it is necessary for us to extract Section 14 (1) of the Act along with the proviso and it reads as under: "no petition for divorce to be presented within one year of marriage: (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, (unless at the date of the presentation of the petition one year has elapsed) since the date of the marriage. Provided that the Court may, upon application made to it in accordance with such rules as may be made by the high Court in that behalf, allow a petition to be presented (before one year has elapsed) since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the (expiry of one year) from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed. " ( 8 ) FROM a plain reading of the said Section, it is clear that no application for dissolution of marriage by a decree of divorce shall be entertained by any Court, if it is presented within a period of one year. The restriction imposed by the said proviso is only to the court but not to the spouse. " ( 8 ) FROM a plain reading of the said Section, it is clear that no application for dissolution of marriage by a decree of divorce shall be entertained by any Court, if it is presented within a period of one year. The restriction imposed by the said proviso is only to the court but not to the spouse. From the words incorporated under Section 14 that it shall not be competent for any Court to entertain any petition" it can safely be inferred that the court is prohibited from entertaining any application filed under the provisions of the hindu Marriage Act within a period of twelve months from the date of the marriage. It never said that the aggrieved spouse should not file an application within a period of twelve months. No doubt, it is a fact that the present application was filed on 12-2-1997 i. e. , within a period of one year from the date of the marriage but actually the Court has taken the said papers on its file only on 25-2-1997 i. e. , after expiry of one year stipulated under the Act. Hence this Court is of the view that the objection put forth by the petitioner-wife under Order 7 Rule 11 C. P. C. is not tenable. ( 9 ) FROM the facts it is clear that on an earlier occasion also an application under order 7 Rule 11 C. P. C. was filed and at the relevant point of time this objection was not raised and the objection put forth by the wife i. e. , the petitioner herein earlier was that the senior Civil Judge s Court is not competent to try the matter in view of the fact that it is a matter to be tried by the Family Court. That objection was accepted. It is not known as to why the objection, which is taken, now was not taken at that point of time. In view of the same, this Court is of the view that the petitioner is coming forward with this sort of applications only to protract the litigation, which cannot be entertained. ( 10 ) SO far as the judgment relied upon by the learned counsel for the petitioner is concerned it is altogether different. In view of the same, this Court is of the view that the petitioner is coming forward with this sort of applications only to protract the litigation, which cannot be entertained. ( 10 ) SO far as the judgment relied upon by the learned counsel for the petitioner is concerned it is altogether different. The point that was agitated and decided was about the correctness of the exercise of the power as per the proviso to Section 14 (1) of the Act. Hence the said judgment has no application to the facts on hand. ( 11 ) IN the light of the above, we see no merits in the revision petition and accordingly it is dismissed. No costs.