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2009 DIGILAW 200 (MP)

Sunitee Chauhan v. Aakash Singh Chauhan

2009-02-10

B.M.GUPTA, K.K.LAHOTI

body2009
ORDER 1. Heard on admission. 2. Feeling aggrieved and impugning the order dated 15.1.2009 passed by the principal Judge of the Family Court, Gwalior in case No. 205N2008 H.M.A., this petition under Article 227 of the Constitution of India has been preferred by the petitioner-wife Smt. Sunitee Chauhan against the respondent husband Akash Singh Chauhan. Vide impugned order, the learned Judge has allowed the application filed under Order 6 Rule 17 of CPC by the respondent in the aforementioned case initiated by him for restitution of conjugal rights under Section 9 of the Hindu Marriage Act 1955 (in short-the Act) and has permitted him to incorporate alternative plea of divorce under Section 13 of the Act. 3. The order has been assailed mainly on the ground that by the amendment, the nature of the case has been changed, which has not been acceded to by the learned judge. 4. Upon combined reading of the application and the impugned order, it appears that during the proceeding when the efforts of reconciliation became unsuccessful by refusal of the petitioner-wife to live along with the respondent husband, the parents of the respondent were also threatened on 5th August 2008 that if the proceedings under Section 9 of the Act are not withdrawn, criminal cases will be instituted against them and they will be sent to the jail. Vide impugned order, it also appears that during arguments it was mentioned on behalf of the respondent that a false report was lodged by the petitioner at crime No. 354/08 at Police Station Padav, Gwalior against the parents of the respondent and in consequence thereof, they were taken into custody and remained in jail. Anticipatory and the regular bail applications filed on their behalf were also opposed, on behalf of the petitioner. 5. Learned Judge has observed that till date no reply was filed by the petitioner and the proposed amendment appears essential for just decision of the case. 6. During the course of arguments it has not been disputed on behalf of the petitioner that even after either way disposal of the petition under Section 9 of the Act, filing of the petition for divorce by either of the spouse is not barred. 6. During the course of arguments it has not been disputed on behalf of the petitioner that even after either way disposal of the petition under Section 9 of the Act, filing of the petition for divorce by either of the spouse is not barred. In our considered opinion, considering this aspect, just to avoid the multiplicity of the proceedings, in the aforementioned facts and circumstances of the case, where prima facie there appears no chance for reconciliation, if the respondent has been permitted to incorporate the aforesaid plea in alternative, there appears no jurisdictional error, illegality or impropriety on the part of the learned Judge, in passing the impugned order. On the other hand, it may help to avoid the multiplicity of the litigation between the parties. We may further cite the judgment of the apex Court rendered in Smt. Sneh Prabha v. Ravinder Kumar reported in AIR 1995 SC 2170 , wherein the apex Court while hearing an appeal filed by the wife impugning the decree of restitution of conjugal rights under Section 9 of the Act, considering the fact that the efforts made for reconciliation have been failed and there appearing no possibility of their living together, has passed a decree of divorce in the same petition on the ground that the decree of restitution of conjugal rights was not executed and the respondent-husband has filed a new petition for divorce before the trial Court. 7. In view of all, the petition being devoid of merits and substance is dismissed.