Karnataka High Court
Madhuri Murthy vs Mr Sivakumar Challa on 30 May, 2012
Author: Ajit J Gunjal
Bench: Ajit J.Gunjal
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30th DAY OF MAY 2012
BEFORE
THE HON'BLE MR. JUSTICE AJIT J.GUNJAL
WRIT PETITION NO.11948/2010(GM-FC)
BETWEEN :
Madhuri Murthy,
Aged 35 years,
D/o.Mr.M.R.Murthy,
105C, Wilson Manor Apartments,
Wilson Garden, 13th Cross,
Bangalore - 560 027. ...PETITIONER
(By Sri.James P.Arun Kumar, Adv.)
AND :
Mr.Shivakumar Challa,
Aged 41 years,
S/o.Sri.Kuppuramaiah Challa,
Flat No.206, Second Floor,
Banashankari Balaji Paradise,
Kanakapura Main Road,
Yalachenahalli,
Bangalore - 560 078. ...RESPONDENT
(By Sri.P.B.Appaiah, Adv.)
. . . .
This writ petition is filed under Articles 226 and
227 of the Constitution of India with a prayer to quash
the order dated 10.03.2010 vide Annexure `Respondent'
passed on I.A. U/O.XXXII-A of the Code of Civil
-2-
Procedure, 1908, in G & WC. No.82/05 connected with
MC.1758/05 on the file of III Additional Family Court,
Judge, Bangalore.
This writ petition coming on for preliminary
hearing in `B' Group, this day, the Court made the
following:
ORDER
The husband and wife have irreconcilable difference between them inasmuch as the petitioner - wife has initiated proceedings seeking dissolution of the marriage in M.C.No.1758/2005 on the file of the Family Court at Bangalore on the ground of cruelty and desertion. She has also initiated proceedings under the G & WC seeking custody of the minor child. It is not in dispute that the child is with the mother and the father is given visiting rights.
2. After the initiation of the proceedings, both the petitions were dismissed for non-prosecution on the ground that the petitioner-wife was not present before the Judge during the course of proceedings. Applications were filed seeking restoration of the -3- petitions. The said applications were rejected as against which the petitioner-wife was before this Court in a Miscellaneous First Appeal.
3. Mr.Appaiah, learned counsel appearing for the respondent submits that on a concession made by respondent-husband appeals were allowed and both the petitions were restored to file.
4. Suffice it to note that both the proceedings were restored to file. It appears during this interregnum certain exchanges by way of communication took place between the husband and wife as to filing of a Joint Petition under Section 13B of the Hindu Marriage Act. It is the contention of the petitioner - wife that on more than one occasion, the petitioner - husband had assured her that he would give his consent for a divorce and the petition could be filed under Section 13B of the Act. According to the petitioner-wife after prolonged discussion a memorandum of understanding was drafted. The respondent - husband resciled from his -4- stand. The petitioner in the circumstances was constrained to initiate contempt proceedings. This Court did not entertain the contempt petition though it found that the conduct of the respondent should be deprecated, but however only to avoid further escalation and difference between the parties, the Court did not exercise its contempt jurisdiction in the matrimonial matter. This Court observed that if the difference between the husband and wife cannot be reconciled, a petition could be presented under Section 13B of the Hindu Marriage Act and in the alternate if such a petition cannot be presented, it is always open for the wife to pursue her petitions already presented before the Family Court both for dissolution of the marriage and for custody of the child.
5. Mr.Appaiah, learned counsel appearing for the husband submits that the husband has also presented G & WC No.85/2011 and it is still pending adjudication. It is submitted at the bar that all the three petitions are -5- called on the same date before the Court, though they are not clubbed.
6. During this interregnum, an application is moved under Order 32A Rule 4 of the Code of Civil Procedure read with Sections 9, 10, 11 and 12 of the Family Court Act to secure the assistance of a Social Welfare Expert for settlement in both the matters. Indeed the wife would press into service the Doctrine of Promissory Estoppel inasmuch as on more than one occasion husband had promised that he would consent for divorce and consent petition could be filed under Section 13B of the Act. Having resciled from such a stand, it would amount to promissory estoppel. Hence, the present application was made. The said application, on contest has been rejected on the ground that such a matter cannot be referred to a Social Welfare Expert inasmuch as a Welfare Expert is not appointed by the State under the Act. Nevertheless, the learned Family Judge observed that if both the parties consent that the matter should be referred to mediation, the question of -6- referring it to an expert mediator does not arise. Hence, this order is subject matter of the present writ petition.
7. It is noticed that this petition was dismissed on the ground that original proceedings were not surviving inasmuch as both the petitions were dismissed for non- prosecution. But however, this Court reserved liberty to revive the petitions in the event the matrimonial matter as well as custody proceedings are revived. Accordingly, an application was moved in this writ petition and the order of dismissal was recalled and that is how the proceedings are revived and posted.
8. Mr.Arun Kumar, learned counsel appearing for the petitioner - wife vehemently submits that the Doctrine of Promissory Estoppel is attracted inasmuch as the learned Family Judge has recorded a finding that the said principal is attracted, but nevertheless has declined to entertain the said application. He further submits that the Family Judge himself could act as a Social Welfare Expert and bring about a settlement -7- between the parties and the respondent-husband should go through the commitment made by him to the wife. He further submits both the matters are set down on 16.06.2012 before the Family Judge and the new Family Judge has taken up on herself to bring about an amicable settlement between the parties.
9. Mr. Appaiah, learned counsel appearing for the respondent-husband submits that the possibilities of filing a joint petition are remote, nevertheless the respondent-husband would certainly give it a try on the next date of hearing before the learned Family Judge.
10. I am of the view that the question of interfering with the impugned order in the circumstances does not arise. The reasons given by the learned Family Judge for rejection of the said application may not be justified, but nevertheless having regard to the fact that the very request made by the petitioner-wife that the matter should be referred to a Social Welfare Expert and the learned Family Judge has taken upon herself to act as -8- such, the request made by the petitioner appears to have been granted. Indeed as observed by the Contempt Court, if nothing worthwhile comes out from the exercise before the learned Family Judge, it is desirable that both the husband and wife take the orders on merits.
11. In the event, the parties do not agree upon the terms of settlements, which according to the wife were agreed upon at some earlier point of time, the learned Family Judge shall conclude the proceedings itself on merits within a period of three months from 16.06.2012.
With this observation, petition stands disposed of accordingly.
All other contentions urged are left open.
SD/-
JUDGE SPS