Karnataka High Court
Suresh N Shetty vs Sharmila K on 26 March, 2024
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NC: 2024:KHC:12493
WP No. 23689 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 23689 OF 2022 (GM-FC)
BETWEEN:
SURESH N SHETTY
S/O LATE SRI NARAYAN SHETTY
AGED ABOUT 52 YEARS
R/AT NO.2131 N KIRBYWOOD TRAIL GRAND
PRARIE TX 75052 U.S.A.
...PETITIONER
(BY SRI. PARASHURAM A L.,ADVOCATE)
AND:
SHARMILA K
D/O LATE SRI STEPHEN D SOUZA
AGED ABOUT 49 YEARS
R/AT DOOR NO.9-30 SAI KRIPA NEAR
Digitally G H P SCHOOL
signed by NALYA PADAVU SHAKTINAGAR,
SUVARNA T MANGALURU -575016 D K
Location: ...RESPONDENT
HIGH
COURT OF (BY SMT. MEDINI RAO.,ADVOCATE FOR;
KARNATAKA SRI. ANNU BHARDWAJ., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS IN M.C NO 400/2021 ON THE FILE OF THE
PRINCIPAL JUDGE, FAMILY COURT, D.K, MANGALURU.SET
ASIDE ORDER DATED 15.07.2022 PASSED BY THE PRINCIPAL
JUDGE, FAMILY COURT, D.K, MANGALURU ON I.A. NO. VII IN
M.C.NO 400/2021.(ANNEXURE-A)
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NC: 2024:KHC:12493
WP No. 23689 of 2022
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the order passed in I.A. No.VII in M.C. No.400/2021, dated 15.07.2022 the husband is before this court. Parties are referred to as the wife and husband for the sake of convenience.
2. The respondent herein i.e., wife has filed M.C. No.400/2021 seeking divorce. In that I.A. No.VII is filed by the husband under Order-VII, Rule-11 of CPC seeking rejection of the petition. It is the case of the husband that he was working in USA and as their marriage was not working, they decided to put an end to the marriage and both of them wanted to apply for a decree of divorce in USA and initiated proceedings before the 303rd Judicial District Court Dallas Texas state. In the said petition the respondent/wife has filed a waiver and accordingly, a divorce decree was granted on 28.03.2013, by dissolving the marriage. It is the case of the husband that having -3- NC: 2024:KHC:12493 WP No. 23689 of 2022 obtained a mutual consent divorce in USA in the year 2013 and having kept quiet, in the year 2021 the wife had initiated the divorce proceedings in India and the same is barred by res-judicata. It is submitted that only with an intention to harass the husband she has filed this petition. The respondent/wife has filed her objections before the court below wherein it is denied that any such waiver application has been filed by the wife and that the divorce was obtained by the husband on suppression, misrepresentation and on the grounds of fraud. As such the said decree is not binding on her and the application filed under Order-VII Rule-11 of CPC is liable to be rejected.
3. The court below having considered the submissions and the case of both the parties and having discussed the scope of Order-VII Rule-11 of CPC and also the judgment of the Hon'ble Apex Court in the case of SRIHARI HANUMANDAS TOTALA vs. HEMANT -4- NC: 2024:KHC:12493 WP No. 23689 of 2022 VITHAL KAMATH1, wherein the Hon'ble Apex Court while discussing the scope of Order-VII, Rule-11(d) of CPC has held that -
"an adjudication of the plea of res-judicata requires consideration of the pleadings, issues and decision in the "previous suit" such a plea will be beyond the scope of Order-7, Rule11(d) where only the statements in the plaint will have to be perused"
Accordingly, the court below had dismissed the application. Aggrieved thereby the husband is before this Court.
4. Learned counsel appearing for the husband submits that the having obtained a mutual decree of divorce before the courts at USA, now it is not open for the wife to file a petition for divorce. It is submitted that the said relief are barred by res-judicata and also with an intention to harass the husband the wife has come up before this Court. It is submitted that when the divorce 1 Civil Appeal No. 4665/2021 -5- NC: 2024:KHC:12493 WP No. 23689 of 2022 was obtained in the year 2013 and they are staying separately till date, she has filed the petition in the year 2021 and he submits that even on the ground of latches also she cannot maintain a petition before this Court.
5. On the otherhand, learned counsel appearing for the respondent/wife had relied on the following judgments:
i) Hon'ble Apex Court's judgment in the case of NARASIMHA RAO vs. VENKATA LAKSHMI2
ii) Hon'ble Apex Court's judgment in the case of VISHNU DUTT SHARMA vs. MANJU SHARMA3
iii) Punjab and Haryana High Court's judgment in the case of ROOPA vs. ANITHA CHOWDARY4
iv) Delhi High Court's judgment in the case of HARMEETA SINGH vs. RAJAT TANEJA5 2 1991 (3) SCC 451 3 AIR 2009 SC 2254 4 2014 AIR CC 2231 (P&H) 5 102 (2003) DCT 822 -6- NC: 2024:KHC:12493 WP No. 23689 of 2022
6. Learned counsel submits that the decree which is obtained by fraud is not binding on the wife and the ground on which the divorce is granted is on the ground of Insupportability and it is submitted that such a ground is not available under the Hindu Marriage Act. Hence, the court below had rightly dismissed the petition filed under Order-VII, Rule-11 of CPC.
7. Having heard the learned counsel on either side, perused the entire material on record. The application is filed under Order-VII Rule-11. At this juncture it is appropriate to look at the provisions which reads there-
"11. Rejection of plaint. The plaint shall be rejected in the following cases-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the -7- NC: 2024:KHC:12493 WP No. 23689 of 2022 Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law.
e) where it is not filed in duplicates
f) where plaintiff fails to comply with provision of rule 9."
8. The plaint can be rejected as under Order-VII Rule-11 of CPC, as per the grounds enumerated from clause (a) to (f). According to the husband they have already obtained mutual consent divorce from the courts at USA and the second petition is not maintainable as it is barred by res-judicata. The wife denies the same by stating that it has been obtained by fraud and misrepresentation of facts. A bare perusal of Order-VII, Rule-11 of CPC shows that the grounds that are raised by the husband for rejection of the plaint do not find place in the same and while deciding an application seeking rejection of plaint the court can only look at the plaint and nothing else when all the grounds that are raised by the husband cannot be decided only looking at the plaint -8- NC: 2024:KHC:12493 WP No. 23689 of 2022 averment and for that the parties needs to adduce evidence unless and until the Court hears the matter on merits of it, All the issues cannot be decided by the court on the ground raised by the petitioner that it is barred by res-judicata, the pliant cannot be rejected.
9. The court below had rightly dismissed the petition and this court finds no reasons to interfere and the writ petition is liable to be Dismissed. It is needless to mention that any of the observations / discussions that are made by this Court while deciding this petition shall not be construed as an expression of this Court are the court below shall proceed with the matter on its own.
Accordingly, the Writ Petition is Dismissed and All pending I.A.s, stands closed.
SD/-
JUDGE JJ List No.: 1 Sl No.: 20