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2008 DIGILAW 723 (KAR)

Sulochana v. R. Chandrashekhara Balegar

2008-11-24

N.K.PATIL

body2008
Judgment :- Patil, J. The petitioner being aggrieved by the order dated 10.11.2006 passed in MC.No. 16/1998 on the file of the Civil Judge (Sr.Dn) at Sagar presented the instant writ petition. .2. The undisputed facts of the case are that, the petitioner and respondent are the wife and husband having been legally married on 2nd February 1996 in Dharmastala Kshetra, Dakshina Kannada, after the death of first wife. The petitioner is the second wife of the respondent. From the first wife the respondent has three children’s 2 sons and 1 daughter. He being the businessman and owner of the Shreedar Wood Works, has a huge residential property in the City of Sagar, Shimoga District. Soon after the marriage of respondent with the petitioner, when the petitioner caught respondent indulging in illegal activities, petitioner was harassed, ill-treated and starved without food for days and was almost thrown out of the house by the respondent and his younger sister. At this stage, the petitioner approached the Sagar Police Station and lodged the complaint against the respondent. Thereafter, the respondent without any justification has filed the application under Section 13 of the Family Courts Act for dissolution of his marriage with an intention to deliberately drag the petitioner .to redress her grievance from the counsel before the Court below. The petitioner boldly and courageously participated in the proceedings and filed written statement and strongly resisted contending that, the petition filed by the respondent is false and not maintainable and she was constrained to file the application under Section 24 of the Hindu Marriage Act for interim maintenance and the same was allowed and the interim maintenance was granted to the petitioner. The respondent questioned the correctness of the order passed in favour of the petitioner before the competent Jurisdictional Court in Civil Revision Petition No.2191 2001. The revision petition filed by the respondent was disco issue confirming the order for interim maintenance passed by the Civil Court. Be that as it may, the respondent very conveniently has tiled I.A.No.5 under Order 23 Rule 1 and 2 of CPC for withdrawal of the M.C. petition when the respondent was cross-examined and case was posted for further evidence. The Trial Court has rejected the said I.A.No.5 filed by the respondent. Be that as it may, the respondent very conveniently has tiled I.A.No.5 under Order 23 Rule 1 and 2 of CPC for withdrawal of the M.C. petition when the respondent was cross-examined and case was posted for further evidence. The Trial Court has rejected the said I.A.No.5 filed by the respondent. Subsequently assigning the same reasons as stated in the I.A.5, respondent has filed a memo dated 29.09.2006 before the Lower Court for withdrawal of MC.No.16/ 1998. The petitioner has filed appropriate objection to the memo for withdrawal and requested the Lower Court to impose heavy cost of Rs.30,000/-. Since the respondent has not paid interim maintenance for the last six months, the petitioner was in a great financial difficulty and was living a hand to mouth existence without having any independent source of income. The Court below after hearing both sides without any justification, when the matter was at the stage of further cross-examination of respondent, has accepted the memo and filed by respondent seeking withdrawal of the M.C.No.16/ 1998 & allowed the same with cost of Rs.3,000/- to be paid to the petitioner. Being aggrieved by the order impugned passed by the learned Civil Judge(Sr.Dn) Sagar vide Annexure-D and seeking appropriate relief as stated supra, petitioner herein has filed the present Writ Petition. 3. I have heard the learned counsel for the petitioner and learned counsel for the respondent. .4. After careful evaluation of the grounds urged in the instant writ petition including the order impugned it emerges that, the learned Civil Judge (Sr,Dn). Sagar has committed a grave error in passing the order impugned, resulting in mis-carriage of justice by permitting the respondent to withdraw the petition without any justification that too, when the matter was posted for further cross-examination of the respondent as it is P.W-1, that too, after lapse of nearly more than eight years. It was the specific case of the petitioner before the Lower Court that, the respondent has not paid the interim maintenance as awarded on application filed by the petitioner under Section 24 of the Hindu Marriage Act at the rate of Rs.3,000/-p.m., which has been confirmed by this court in CRP.No.2191/2001. It was the specific case of the petitioner before the Lower Court that, the respondent has not paid the interim maintenance as awarded on application filed by the petitioner under Section 24 of the Hindu Marriage Act at the rate of Rs.3,000/-p.m., which has been confirmed by this court in CRP.No.2191/2001. It was the further case of the petitioner before the Lower Court that, the respondent has harassed the petitioner for such a long period of more than eight years and not complied with the directions issued by the Court regarding interim maintenance awarded. It was the specific case of the petitioner that, though the respondent examined himself in Chief as PW-1 and partly cross-examined, when the matter was posted for further cross-examination, respondent has filed an application I. A.No.5 under Order 23 Rule and 2 of CPC for withdrawal of the petition. The .petitioner has made serious allegation against the respondent and vis-a-vis it appears to save himself from the cross-examination based on the defence put forth by the petitioner and the respondent herein sought withdrawal of the M.C. Petition. The said reasoning given by the Court below at para 11 of the order, for allowing the memo cannot be sustained and is liable to be rejected, at the threshold. The Trial Court has not looked into nor considered the strong objections raised by the petitioner by way of filing objections to the I.A.No.5 and memo filed for withdrawal. Respondent has intentionally and deliberately initiated the proceedings under Section 13 of the Family Court Act for Dissolution of Marriage. The reference made at para 9 of the order is astonishing regarding the nature and conduct of the respondent. Knowing fully well, he has got children through the first wife and pursuant to the marriage with the petitioner, time and again, he has tortured the petitioner and compelled her to undergo family planning operation as he did not want anymore children. When the petitioner did not agree for it, the respondent himself has undergone family planning operation and as such the respondent is not having any issue from the petitioner and sought to dismiss the present petition. When the petitioner did not agree for it, the respondent himself has undergone family planning operation and as such the respondent is not having any issue from the petitioner and sought to dismiss the present petition. It is duty cast on the Court to go into the root cause of the matter and take into consideration the ground reality and not to entertain the petition filed by a person who is not approaching the Court with clean hands and not stating true facts and who is taking undue advantage of the relevant provisions of the statute. Moreover there is delay of more than eight years in approaching the Court below for filing a memo for withdrawal of the petition, that too, when the application-I.A. No.5 filed by the respondent for withdrawal o f the petition under Order 23 Rule 1 and 2 of CPC has been rejected by the said Court. Reiterating the same stand in the Memo for withdrawal is nothing but res judicata for the respondent to file such misconceived and vexatious memo for withdrawal. The Lower Court ought not to have entertained such memo permitting the respondent to withdraw the petition which was at the stage of recording the further cross-examination of the respondent. The Trial Court further committed grave error in not considering the status of the parties and material available on record and the contentions taken by the petitioner by way of objections. The Trial Court has proceeded and handled the entire matter very casually. Therefore, the order passed by the Court below permitting to withdraw the petition is not justifiable nor is appreciable having regard to the status of the parties and having regard to the facts and circumstances of the case. 5. In the light of the facts and circumstances of the case, the writ petition filed by the petitioner is allowed in part. The order dated 10.11.2006 passed on the memo filed by the respondent for withdrawal of M.C.No.16/98 on the file of the learned Civil Judge (Sr.Dn), Sagar, vide Annexure-D is hereby quashed. 5. In the light of the facts and circumstances of the case, the writ petition filed by the petitioner is allowed in part. The order dated 10.11.2006 passed on the memo filed by the respondent for withdrawal of M.C.No.16/98 on the file of the learned Civil Judge (Sr.Dn), Sagar, vide Annexure-D is hereby quashed. The matter stands remitted back to the Trial Court to proceed further from the stage where the order impugned was passed and decide the same on merits, after affording opportunity to the petitioner and respondent and dispose of the same as expeditiously as possible, at any rate within a period of four months from the date of receipt of the copy of this order.