AI Structured Summary
Not yet generated for this judgment
Judgment
R. Banumathi, J.—Challenge in this Appeal is the docket order dated 26.5.2010 in F.C.O.P. No. 54 of 2010 on the file of Family Court,
Salem permitting the Respondent to withdraw F.C.O.P. No. 54 of 2010 with liberty to file fresh Petition in future with the same cause of action.
Marriage between the Appellant and the Respondent was solemnised on 28.5.2007 in Erode. Respondent was employed in Canada for 2 years
before the marriage and he got work permit from Canadian Authorities. After the marriage, Respondent left for Canada and got the work permit
extended. There was some delay in getting Visa to the Appellant and finally, Appellant went to Canada on 18.7.2008 and she is said to have
stayed in Canada for about eight days and thereafter, she came back from Canada. A panchayat is said to have been convened on 9.9.2008 at
Erode and that the said panchayat did not fructify. According to the Respondent, the family members of Appellant left her in the Respondent''s
house at Salem and therefore the parents of the Respondent left the house. Alleging that Appellant was abusing and scolding the Respondent and
that she treated the Respondent with cruelty, Respondent filed Divorce Petition in H.M.O.P. No. 12 of 2009 u/s 13(1)(i-a) & (iii) of Hindu
Marriage Act before the Principal Sub-Court, Erode.
Appellant filed Transfer O.P. No. 263 of 2009 before the High Court. As per the order in Transfer O.P. No. 263 of 2009 dated 7.12.2009,
H.M.O.P. No. 12 of 2009 on the file of Principal Sub-Court, Erode was transferred to Family Court, Salem and re-numbered as F.C.O.P. No.
54 of 2010. Appellant also filed Maintenance Petition before the Family Court, Salem in M.C. No. 25 of 2009 and obtained order on
19.11.2009, as per which, the Respondent shall pay monthly maintenance of Rs. 1,00,000/- to the Appellant till her life time. Subsequently,
Appellant also filed Petition to execute the same.
In F.C.O.P. No. 54 of 2010, Respondent filed Petition in I.A. No. 142 of 2010 under Order 3, Rule 1 to recognise his father Chandrasekaran
as his Power of Attorney Agent and to permit the said Chandrasekaran to proceed with the case on behalf of the Respondent. The said Petition in
I.A. No. 142 of 2010 was allowed on 25.10.2010. Respondent filed Memo on 25.10.2010 attested by Barrister/Notary Public in Canada to
withdraw the Divorce Petition with liberty to file fresh Petition in future with same cause of action. It is stated that the said order is challenged by
way of Revision Petition. Immediately, on the next day of allowing I.A. No. 142 of 2010, on 26.5.2010, a Memo filed by the Respondent was
recorded and the Family Court, Salem passed the following order:
In view of the Memo the Petition is dismissed as not pressed with liberty to file fresh Petition''s for same cause of action.
Challenging the impugned order, Mr. P.B. Balaji, learned Counsel for the Appellant contended that without proper Application under Order 23,
Rule 1 & 2, C.P.C., the Family Court ought not to have granted the relief of withdrawal of Divorce Petition with liberty to file fresh Petition on the
same cause of action. It was further submitted that as per Order 23, Rules 1 & 2 C.P.C. read with Section 13 of Family Courts Act, the
Respondent ought to have presented Application in person with appropriate Affidavit stating reasons for withdrawing the Petition with liberty to file
fresh Petition on the same cause of action. It was further submitted that Family Court erred in allowing the prayer without assigning any reason. It
was further submitted that Family Court erred in not appreciating that Appellant obtained an order of maintenance of Rs. 1,00,000/- payable by
the Respondent and only to avoid appearance in the Maintenance proceedings, Respondent filed the Memo to withdraw the Divorce Petition
through the third party to the proceedings and that Family Court ought not to have entertained the same and that it amounts to abuse of process of
Court.
Placing reliance upon the judgment of the Honourable Supreme Court in Bakhtawar Singh another Vs. Sada Kaur and another, , learned
Counsel for the Appellant contended that the Application ought to have been filed explaining as to what was the defect of jurisdiction or any other
cause of like nature justifying the withdrawal of the Divorce Petition with liberty to file a fresh Petition. Taking us through the typed set of papers
and also the impugned order, learned Counsel for the Appellant would further submit that the Trial Court has not recorded its satisfaction as to the
formal defects and prayed for allowing the Appeal. He has also placed reliance upon the judgment of the learned Single Judge of this Court in
Velusamy and another v. Chenniappan and others, 2010 (5) CTC 330.
Mr. M. Devaraj, learned Counsel for Respondent contended that as per Section 10 of Family Courts Act, CPC is applicable to Family Court
proceedings and in Section 10(3), it is also laid down that the Family Court is free to evolve its own rules and procedures and therefore, it was not
incumbent to file Petition under Order 23, Rule 1 & 2, C.P.C. for withdrawal of Divorce Petition. Learned Counsel for Respondent further
submitted that the order passed in the Memo permitting the Respondent to withdraw Divorce Petition with liberty to file fresh Petition is not a final
order and therefore, the Appeal filed by the Appellant is not maintainable. Learned Counsel would further submit that since the Petition suffered
from formal defect and taking into consideration the relevant aspects of the matter, Family Court rightly granted permission to withdraw Divorce
Petition with liberty to file fresh Petition on the same cause of action.
The conduct of Suits and proceedings before the Family Court are governed by the provisions of Family Courts Act and Rules framed
thereunder. However, sub-section (1) of Section 10 of Family Courts Act makes a deeming provision of making the Family Court to be the Civil
Court. Therefore, wherever there is no provision under the Act or under the Rules for conduct of Suits and proceedings, the provisions of CPC
shall apply or Code of Criminal Procedure shall apply as the case may be.
Section 10(1) of Family Courts Act, 1984 reads as under:
Procedure generally.--(1) Subject to the other provisions of this Act and the Rules, the provisions of the Code of Civil Procedure, 1908 (5 of
1908) and of any other law for the time being in force shall apply to the Suits and proceedings (other than the proceedings under Chapter IX of the
Code of Criminal Procedure, 1973 (2 of 1974), before a Family Court and for the purposes of the said provisions of the Code, a Family Court
shall be deemed to be a Civil Court and shall have all the powers of such Court.
Sub-section (3) of Section 10 of the Act lays down that nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying
down its own procedure with a view to arrive at a settlement in respect of the subject matter of the Suit or proceedings or at the truth of the facts
alleged by the one party and denied by the other.
Contention of Appellant is that insofar as withdrawal proceedings, provisions of CPC are applicable and that Petition under Order 23, Rules 1
& 2, C.P.C. ought to have been filed for withdrawal of Divorce Petition and that Divorce Petition ought not to have been allowed to be withdrawn
on the Memo filed by the Respondent, represented through his power of attorney. Before we consider the contention as to non-filing of
Application under Order 23, Rule 1 & 2, C.P.C., it is necessary to refer the circumstances in which Memo came to be filed.
Section 13 of Family Courts Act provides notwithstanding anything contained in any law, no party to a Suit or proceeding before a Family
Court shall be entitled as of right to be represented by a legal practitioner. Proviso to the said provision indicates that ""if the Family Court considers
it necessary in the interest of justice, it may seek the assistance of a legal expert as ""Amicus Curiae"" It may be noted that prohibition in respect of
appearance of a legal practitioner is total and that the Proviso only enables the Court to have assistance of a legal expert as ""Amicus Curiae"" to
assist the Court. By virtue of Section 9 of Family Courts Act, a duty is cast upon the Family Court to make endeavour to assist and persuade the
parties in arriving at a settlement in respect of the subject matter of the Suit or proceedings and if the Family Court feel that there is a reasonable
possibility of settlement between the parties, the proceedings have to be adjourned for a reasonable period to enable the parties to effect such
settlement.
As pointed out earlier, Respondent was employed in Canada and even after his marriage, he continued his employment in Canada. Even when
being in employment in Canada, he filed Divorce Petition before the Principal Sub-Court, Erode in H.M.O.P. No. 12 of 2009. When the Divorce
Petition was transferred to the Family Court, Salem and the same was taken on file as F.C.O.P. No. 54 of 2010 (4.2.2010), in view of Section 13
read with Section 9 of the Act, the appearance of Respondent for the hearings in the Family Court became inevitable. It was at that stage, based
on the Power of Attorney executed by the Respondent, I.A. No. 142 of 2010 praying to recognise the Respondent''s father Chandrasekaran as
power agent of the Respondent was filed. I.A. No. 142 of 2010 was allowed on 25.5.2010 permitting the Respondent to be represented through
his power agent viz., his father. Simultaneously, Memo was filed on 20.5.2010 to withdraw the Divorce Petition with liberty to file fresh Petition.
On 26.5.2010, recording the said Memo, Divorce Petition was dismissed as withdrawn with liberty to file fresh Petition in future for same cause of
action.
Withdrawal of Divorce Petition with liberty to file fresh Petition is not a ""settlement in respect of subject matter of the Suit or proceeding"" and
therefore, seeking permission to withdraw the Divorce Petition cannot be said to be the proceeding u/s 10(3) of Family Courts Act. For granting
permission to withdraw the Divorce Petition, Family Court cannot adopt its own procedure. As per Section 10 of the Act, provisions of CPC are
applicable to the Suits or proceedings before the Family Court. Therefore, for withdrawal of the Divorce Petition, Petition under Order 23, Rules 1
& 2, C.P.C. ought to have been filed by the Respondent. Had there been Application filed under Order 23, Rules 1 & 2, C.P.C. to withdraw the
Divorce Petition, the Appellant would have put forth her case raising objection for such withdrawal.
Order 23, Rule 1(3), C.P.C. contemplates withdrawal of the Suit with a liberty to bring a fresh Suit. Under Order 23, Rule 1(3), C.P.C.,
Court could grant permission to allow the Plaintiff to withdraw the Suit on such terms as it minks fit with liberty to file a fresh Suit on the same
cause of action where the Court is satisfied: (a) that the Suit must fail by reason of some formal defect; (b) that there are sufficient grounds for
allowing the Plaintiff to institute a fresh Suit for the subject matter of a Suit or part of a claim.
For withdrawal of the Suit with liberty to bring a fresh Petition, the party must ask for leave and make out a case falling within ""Clause (a) or
(b)"" of Order 23, Rule 1(3), C.P.C. The Court has no jurisdiction to allow such withdrawal with liberty to file fresh Petition unless the condition in
either of the clauses is satisfied. Learned Counsel for the Respondent contended that the Respondent is employed in Canada and therefore unable
to personally attend the hearings in Family Court to contest the formal defect to withdraw the Divorce Petition. Any inconvenience or difficulty in
appearance in the Court cannot amount to formal defect justifying grant of permission to withdraw the Suit. ""... Formal defect"" must be in
consonance with Order 23, Rule 1(3) & Clause (a) or (b), C.P.C.
For granting permission to withdraw the Divorce Petition with liberty to file fresh Petition, the Court has to be satisfied about the existence of
''formal defect'' and must state the reasons for holding that a case within Order 23, Rule 1(3) & Clause (a) or (b) has been made out. As pointed
out earlier, in this case, the Respondent has filed a Memo stating that the Respondent wants to withdraw the Divorce Petition with liberty to file a
fresh Petition on the same cause of action. In the Memo filed by the Respondent to withdraw the Divorce Petition with liberty to file a fresh
Petition, no reasons are stated as to how the Petition must fail by reason of mere formal defect or that there are sufficient grounds allowing the
Respondent to withdraw the Divorce Petition.
After we have heard the arguments, on being mentioned by the learned Counsel for the Respondent, the matter was listed on 11.9.2012 under
the caption ''for being spoken to''. Learned Counsel for the Respondent produced the typed set of papers containing copy of the Memo filed by
the Respondent. Respondent filed a Memo dated 20.5.2010 stating that he is not pressing the Divorce Petition and seeking permission to
withdraw the Divorce Petition with liberty to file fresh Petition on the same cause of action. The said Memo was filed on 20.5.2010 and the
Appellant received copy of the said Memo.
Of course, the Memo was filed in the Family Court on 20.5.2010 and served upon the Appellant on the same day i.e. 20.5.2010. By perusal
of the order sheet, it is seen that I.A. No. 142 of 2010 filed by the Respondent seeking permission to be represented by power agent was allowed
on 25.5.2010. Thereafter, on 26.5.2010, the Memo was recorded and Divorce Petition was dismissed as not pressed with liberty to file a fresh
Petition on the same cause of action.
When Memo was filed to withdraw the Divorce Petition, evidently Memo was recorded and orders came to be passed. When Memo was
filed, in normal circumstances, Court may not even ask for Counter. For withdrawal simplicitor, Memo may be sufficient but granting permission to
withdraw the Petition with liberty to file a fresh Petition on the same cause of action, the Application has to set forth the grounds as to how the
Suit/Petition suffers from formal defect. Only when an Application is filed to withdraw the Suit/Petition, the opposite party would have had the
opportunity of explaining that (i) the Suit/Petition does not suffer from formal defect, and (ii) explain how prejudice would be caused to the
opposite party if permission is granted to withdraw the Suit/Petition with liberty to file a fresh Petition.
Learned Counsel for the Respondent contended that in any event, the order permitting the Respondent to withdraw the Divorce Petition is only
an interlocutory order and therefore, the Appeal is not maintainable. The learned Counsel would further submit that in any event, if the Appellant is
aggrieved by the impugned order granting permission to withdraw the Divorce Petition with liberty to file a fresh Petition, she ought to have
challenged the same only by Revision and the Appeal is not maintainable.
The above contention does not merit acceptance. Section 19 of Family Courts Act specifically describes that Appeal shall lie from every
judgment or order not being an interlocutory order of the Family Court to the High Court both on facts and on law except as prohibited under sub-
section (2) of Section 19. Hence, no Appeal lies against any interlocutory order. The learned Counsel has drawn our attention to the various
definitions of ''Interlocutory Order'' in Oxford Law Dictionary and Black''s Law Dictionary.
The impugned order cannot be said to be an interlocutory order by grant of permission to withdraw the Divorce Petition with liberty to file
fresh Petition. The rights of the Appellant was prejudiced and that she was not in a position to put forth her objection against the withdrawal of the
Divorce Petition. Keeping in view the nature of the allegations made in the Divorce Petition, in our considered view, the impugned order granting
permission to the Respondent to withdraw the Petition with liberty to file fresh Petition cannot be said to be an ''interlocutory order'' and the
objection raised by the learned Counsel for the Respondent regarding the maintainability of the Appeal is to be rejected.
Contending that Application seeking permission to withdraw the Suit/Petition by the Plaintiff is not mandatory and that such permission could
be granted even on oral request, learned Counsel for the Respondent placed reliance upon the judgment of the learned Single Judge of the Andhra
Pradesh High Court in V. Govindamma and another v. T. Subrahmanyam Chetty and others, CDJ 1972 APHC 182. Observing that code of
procedure and like all Procedural Laws is designed to further the ends of justice and not to frustrate them by introduction of hairsplitting
technicalities, the learned Single Judge of the Andhra Pradesh High Court held that the Defendants thereon have not suffered any prejudice by the
grant of leave to the Plaintiff without any Written Application as the Trial Judge awarded costs of the Suit to the Defendants. We do not endorse
the views of the learned Single judge. Any litigating party has got the liberty to contest the matter. If permission is granted to withdraw the
Suit/Petition with liberty to file a fresh Suit/Petition on the same cause of action, the party has to undergo the ordeal from the beginning of the
litigation. In the fresh proceedings to be initiated, the Plaintiff filed the Suit/Petition might try to overcome the defence put forth by the opposite
party. In such circumstances, whenever permission is sought for to withdraw the Suit/Petition with a liberty to file a fresh Suit/Petition on the same
cause of action, the Court has to be satisfied about the existence of a formal defect as contemplated under Order 23, Rule 1(3) clause (a) or (b).
Grant of leave envisaged in sub-rule (3) of Order 23, Rule 1, C.P.C. is at the discretion of the Court but the said discretion of the Court is to
be exercised with care and caution. When the Court passes an order allowing withdrawal with liberty to file fresh petition, the Court has to briefly
record its reasons as to how it is satisfied about the existence of formal defect and record reasons for granting permission.
As pointed out earlier, the Respondent failed to show as to what was the defect of Jurisdiction or any other cause of like nature by reasons on
which the Divorce Petition filed by him was not entertainable. Since the Divorce Petition was pending for some time, in the interregnum period,
there were number of other proceedings between the parties. In such circumstances, an opportunity ought to have been afforded to the Appellant
to put forth her objection, which could have been possible only on Application being filed by the Respondent stating as to what was the defect of
jurisdiction or any other cause of like nature. As discussed above, the Respondent failed to show as to what was the defect of jurisdiction or the
other cause of like nature by which the Divorce Petition was not maintainable. The Family Court has also not recorded any reasoning, recording its
satisfaction about the existence of formal defects and reasons for granting permission to withdraw the Divorce Petition with liberty to file a fresh
Petition. In such circumstances, the impugned order cannot be sustained and is liable to be set aside.
Absolutely, no reasons are recorded by the Family Court for permitting the Respondent to withdraw the Petition with liberty to file a fresh
Petition. By a perusal of the Divorce Petition, it is seen that serious allegations are levelled against the Appellant. Therefore, before granting
permission to withdraw the Divorce Petition, the Family Court ought to have afforded sufficient opportunity to the Appellant to put forth her case.
Since no reasons are recorded in the impugned order, the impugned order granting permission to the Respondent to withdraw the Petition with
liberty to file a fresh Petition cannot be sustained and is liable to be interfered with. The impugned order made in F.C.O.P. No. 54 of 2010 dated
26.5.2010 is set aside and this Appeal is allowed. The Family Court, Salem is directed to restore F.C.O.P. No. 54 of 2010 on file and proceed
with the matter in accordance with law after affording sufficient opportunity to both parties. No costs.