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2024 DIGILAW 1150 (GUJ)

Vikram Udhavdas Chug v. Muskaan W/o Vikram

2024-05-08

DEVAN M.DESAI

body2024
ORDER : 1. Heard learned advocates for the parties. 2. By way of the present petition filed under Article 227 of the Constitution of India, the petitioner has challenged the order dated 08.02.2023 passed below Ex.34 by the learned Principal Judge, Family Court, Gandhinagar in Family Suit No. 107 of 2022. The petitioner has prayed for the following reliefs: “17(A) That the Hon’ble Court be pleased to quash and set aside order dated 8.2.2023 passed below Exhibit 34 by the Principal Judge, Family Court, Gandhinagar in Family Suit No. 107 of 2018 and consequently, allow the application at Exhibit 34. (B) That pending the hearing and final disposal of this petition, the Hon’ble Court be pleased to stay further proceedings in Family Suit No. 107 of 2018 pending before the Principal Judge, Family Court, Gandhinagar. (C) For ad-interim reliefs in terms of prayer (B) above. (D) For such other and further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 3. The brief facts narrated in the present petition are as under: 3.1 The marriage between the present petitioner and the respondent was solemnized on 24.07.2016 at Gurudwara, Ahmedabad, Gujarat as per the Hindu rites and ceremony. From the said wedlock baby girl Prishi was born on 04.11.2018. Thereafter, the disputes cropped up between the petitioner and respondent. In July 2021, the respondent left the matrimonial home of the petitioner alongwith her daughter. Respondent and Prishi are as on date staying at her parental home. 4. The petitioner-original opponent had filed a family suit under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the learned Family Court, Pune being petition A No. 682 of 2022 against the respondent-wife. Thereafter, the present respondent-wife filed a suit being family Suit No. 107 of 2022 before the learned Family Court, Gandhinagar under Section 13 of the Hindu Marriage Act, 1955 for decree of divorce. Pending Family Suit No. 107 of 2022, application at Ex.34 came to filed by the petitioner - husband praying for staying the suit under Section 10 of the Civil Procedure Code till final disposal of the petition A No. 682 of 2022 which is pending before the learned Family Court, Pune. The learned Family Court, vide order dated 08.02.2023, rejected the application. Against this order, petitioner is before this Court. 5. The learned Family Court, vide order dated 08.02.2023, rejected the application. Against this order, petitioner is before this Court. 5. Learned advocate for the petitioner has very fairly submitted that the decision which would be given by the learned Family Court, Pune under the proceedings of restitution of conjugal rights would not bind the proceedings which are initiated by the respondent – wife under Section 13 of the Hindu Marriage Act, 1955. However, it is submitted that looking to the nature of allegations and the contentions raised by both the parties in their respective litigations, issues are directly and substantially the same and hence, the provisions of Section 10 of the Code would be applicable. 5.1 It is further submitted that if the proceedings under Section 13 of the Act which have been initiated by the respondent are not stayed and if both the proceedings are allowed to proceed it would lead to chaos and different Courts would decide the common area of dispute differently. Neither the parties have applied for transfer of either of the proceedings by invoking the jurisdiction of Section 25 of the Code of Civil Procedure. 5.2 Learned advocate for the petitioner has relied upon the following decisions: (i) Narpat Singh Gehlot vs. Krishna Kumar and Another, 1973 SCC Online Raj. 174 (ii) Surekha vs. Dilipdas, 1998 SCC Online M.P. 641 5.3 By relying upon the decision of Narpatsinh (supra), learned advocate for the petitioner has submitted that the allegations in the Written Statement filed by the petitioner against the petition under Section 13 of the Act would be same as that of the allegations made against the respondent in the proceedings initiated under Section 9 of the Hindu Marriage Act, 1955. 6. Learned advocate for the respondent has submitted that the provisions of Section 10 of the Code of Civil Procedure, 1908 would not be applicable since nature of both the proceedings i.e. proceedings under Section 9 of the Hindu Marriage Act, 1955 and proceedings under Section 13 of the Hindu Marriage Act, 1955 are different from each other and the findings which would be arrived at by the learned Family Court, Gandhinagar in the suit filed by respondent will not affect the pending suit filed by the petitioner – husband under Section 9 of the Hindu Marriage Act, 1955. 6.1 Learned advocate for the respondent has placed reliance the following decisions: (i) National Institute of Mental Health and Neuro Sciences vs. C. Parameshwara, (2005) 2 SCC 256 (ii) Balveer Singh vs. Harjeet Kaur, AIR 2017 Utt 175 6.2 Learned advocate for the respondent has further submitted that the law under Section 10 of the Code has been made clear in the decision of National Institute (supra). 6.3. It is further submitted that the application Ex.34 is misconceived inasmuch as if the proceedings under Section 13 of the Act are stayed it would eventually delay the proceedings. It is further submitted that the scope under Section 227 of the Constitution of India is very limited and unless there is gross error of law, this Court would not interfere in the decision of trial Court. In the present case, the learned trial Court has rightly rejected the application under Section 10 of the Code. 7. Before discussing the issue involved in the present petition it would be apt to refer Section 10 of the Code: “No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in [India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of [India] established or continued by [the Central Government] and having like jurisdiction, or before [the Supreme Court].” Explanation - The pendency of a suit in a foreign Court does not preclude the Court in [India] from trying a suit founded on the same cause of action. 8. Section 10 of the Code mandates that the Court shall not proceed with the trial of the suit, if the matter in issue in the suit is directly and substantially in issue in a previously instituted suit between the same parties. Plain reading of Section 10 of the Code, makes it clear that where the subject matter of the suit is one and the same and the parties are also the same, under such circumstances, if there are two suits between the parties it is the subsequent suit which has to be stayed. 9. Plain reading of Section 10 of the Code, makes it clear that where the subject matter of the suit is one and the same and the parties are also the same, under such circumstances, if there are two suits between the parties it is the subsequent suit which has to be stayed. 9. The object underlying Section 10 of the Code is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue and also to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue. Section 10 of the code would apply only if there is identity of the matter in issue in both the suits i.e. the whole subject matter in both the proceedings is identical. The words “directly and substantially in issue” are used in contradiction to the words “incidentally or collaterally” in issue. It is not only the identical subject matter but also the relief claimed in both the suits that determine the applicability of Section 10 of the Code. Even if some of the issues or one of the issues are identical, stay of suit cannot be ordered. There must be substantial identity of the subject matter in both the suits and the issue must be directly and substantially in issue in a previously instituted suit. 10. Having considered the averments made in the memo of petition and considering the submissions, the short issue before this Court is whether the proceedings initiated under Section 9 of the Hindu Marriage Act and proceedings initiated under Section 10 of the Code would be considered similar proceedings wherein the issue involved in both the proceedings are directly and substantially in issue. Undisputedly, the proceeding under Section 9 of the Hindu Marriage Act is for the restitution of conjugal rights and the proceedings under Section 13 of the Hindu Marriage Act is for relief of divorce. In both the proceedings, the issue cannot be said to be directly and substantially similar in a previously instituted suit between the same parties. Undisputedly, the proceeding under Section 9 of the Hindu Marriage Act is for the restitution of conjugal rights and the proceedings under Section 13 of the Hindu Marriage Act is for relief of divorce. In both the proceedings, the issue cannot be said to be directly and substantially similar in a previously instituted suit between the same parties. To attract the provisions of Section 10 of the Code, the condition precedent is that the issue involved in the previously instituted suit between the same party or between the parties under whom they or any of them claim litigating on the same title as to be issue directly and substantially in issue. Now coming back to the facts of the present case, it would be relevant to refer cause of action which has been pleaded by the parties in their respective proceedings. In the petition under Section 9 of the Hindu Marriage Act, 1955 the present petitioner in paragraph 20 of the petition has stated cause of action as under: “20. The cause of action for the petition arose in month of July, 2021 when the Respondent along with the minor daughter removed herself from the company of Petitioner and id not return back to her matrimonial house even after repeated request of the Petitioner. It again arose on 31.01.2022 when the Petitioner issued the Respondent a legal notice and called upon her to return with minor daughter to her matrimonial house and cohabit with the Petitioner. It again arose on 08.02.2022 when the Respondent even after the receipt of the legal notice sent by the Petitioner through his advocate didn’t return to cohabit with the Petitioner. It again arose on 22.02.2022 when the Petitioner issued the Respondent a Reminder Notice and called upon her to return with minor daughter to her matrimonial house and cohabit with the Petitioner on or before 28.02.2022. It again arose on 26.02.2022 when the Respondent even after the receipt of the reminder notice sent by the Petitioner through his advocate didn’t return to cohabit with the Petitioner. The cause of action is arising thereafter every day.” 11. In the Family Suit No. 107 of 2022, the present respondent has stated cause of action in Para 23 for filing the suit as under: “23. The cause of action is arising thereafter every day.” 11. In the Family Suit No. 107 of 2022, the present respondent has stated cause of action in Para 23 for filing the suit as under: “23. The cause of action for filing this present petition arose when the parties married each other on 24.07.2016, at Ahmedabad, and when the parties after solemnization of marriage started residing at Pune with the Respondent’s family, and when the Respondent as well as the family soon after marriage started belittling her and taunted her for everything she did, and when the Respondent’s family left not a single opportunity to control and dominate upon the Petitioner, and when the Petitioner was subjected to immense mental and physical cruelty on daily basis by the Respondent and his family, and when the Petitioner was left with no option but to leave the matrimonial home at Pune and return back to Ahmadabad at her paternal home with Prishi, in July 2021 and when since a year the petitioner is alone looking after the needs of Prishi, and when not once did Respondent offered to extend financial/ physical assistance to the Petitioner in taking care of Prishi’s needs and when the Petitioner has become entitled to obtain the decree of divorce on the grounds of cruelty meted out on her, and hence this present petition.” 12. On perusal of the aforesaid two paragraphs cause of action for filing a petition under Section 9 of the Hindu Marriage Act is when according to the petitioner, respondent alongwith the daughter, left the matrimonial home and after repeated request, the respondent did not resume the marital relationship with the petitioner. Wherein the family suit which has been filed by the respondent against the present petitioner on the ground that she was subjected to the cruelty and harassment. Due to which, the respondent leave the matrimonial home. It is also the allegation of the respondent that the petitioner did not offer to extend any financial or physical assistance to the respondent in taking care of the daughter Prishi. 13. Learned advocate for the petitioner has very fairly considered that the purpose of both the proceedings that is proceedings under section 9 and proceedings under Section 13 of the Act, are not the same. 13. Learned advocate for the petitioner has very fairly considered that the purpose of both the proceedings that is proceedings under section 9 and proceedings under Section 13 of the Act, are not the same. However, learned advocate for the petitioner submitted that the purpose of both the proceedings are not same issues would be the same and hence provisions of Section 10 of the Code is attracted. Upon such submissions, I am of the view that as observed about the words “directly and substantial in issue” are contradictory to the words incidentally or collaterally in issue. 14. Does on scrutinizing the respective cases of the petitioner and respondent, it cannot be said that the matter in issue in the suit is “directly and substantially in issue” in a previously instituted suit between the parties. 15. I am of the opinion that in the present case, the decision of Balveer Singh (supra) would be applicable. In Paras 8, 9 and 10, the Hon’ble Apex Court has observed herein-below: “8. If both the provisions if are scrutinized harmoniously, the legislature in all its wisdom had provided that the two sections i.e. section 9 and section 13-A of Hindu Marriage Act, 1955. Provided to meet a separate set of contingencies, while maintaining a matrimonial relationship and its continuance. Under no set of circumstances or reasonableness, Section 9 deals or touches the issue, which is either covered by Section 13 or by Section 13-A of the Hindu Marriage Act, 1955. Thus, both the provisions are divergent to one another one aims to bring family together and the other is a judicial process to separate the family for the grounds provided under Section 13 of Hindu Marriage Act, 1955 and to meet a different purpose. Hence adjudication made by the Court under any of the aforesaid provisions, this Court feels would not attract section 11 of the Code of Civil Procedure to create a Bar in filing of a subsequent suit under either of the provisions under Section 9 or 13-A of Hindu Marriage Act, 1955. 9. Even otherwise also, if a proceeding under Section 9 is initiated by any other party to the family disputes, it's allowing would be ending up of the controversy between the parties or will aggravate the dispute between them. 9. Even otherwise also, if a proceeding under Section 9 is initiated by any other party to the family disputes, it's allowing would be ending up of the controversy between the parties or will aggravate the dispute between them. Allowing or rejection of section 9 will not create any impediment for section 13 and Section 13-A, as they are independent to section 9. Thus Section 9 will not eclipse the statutory effect of section 13-A. Thus, the bar of section 11 of Code of Civil Procedure will not come into to play. 10. Normally, it has been witnessed that whenever there is family feud and the acrimony between the husband and wife, the foremost effort which is made by either of the parties to pave a ground for subsequent proceedings under Section 13 is to initiate Section 9 and Section 13-A, thus subsequently under Section 13 happens to be a consequence of the failure of Section 9. In that view of the matter too, an adjudication under Section 9 prior in time, would not create a Bar Under Section 11 of the Code of Civil Procedure.” 16. Referring the decision of National Institute (supra), in Para 8 the Honorable Apex Court has observed as under: “8. The object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil Court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in Section 10 are “the matter in issue is directly and substantially in issue” in the previous instituted suit. The words “directly and substantially in issue” are used in contradistinction to the words “incidentally or collaterally in issue.” Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical.” 17. In the case of National Institute of Mental (supra), in Para 8, the Hon’ble Apex Court has discussed words “directly and substantially in issue.” Thus, the issue involved in the present case is no more re-integra. 18. The decisions relied upon by the learned advocate for the petitioner are not helpful to the petitioner as in both the cited decisions, facts and the issues involved were directly & substantially same. 19. Further, scope under Article 227 is very limited, unless the Court finds that the learned Court below has committed the serious error of law and has committed an error of misreading the fact which is glaring on the face of the order, this Court do not find any substance to interfere in the findings of facts which are recorded by the learned Family Court. Hence, petition is being meritless and deserves to be dismissed. Accordingly, the same is dismissed. No order as to costs.