Telangana High Court
Amit Suri vs Sonia Suri on 19 February, 2021
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
Civil Revision Petition No.178 of 2021
ORDER :
This Civil Revision Petition is filed under Article 227 of the Constitution of India challenging order dt.25.06.2020 passed in Interlocutory Application No.1282 of 2019 in O.P.No.1386 of 2017 on the file of Principal Judge, Family Court - cum - Additional Chief Judge, City Civil Court, at Hyderabad.
2. The respondent herein filed the said O.P. in October, 2017 under the Family Court Act, 1984 for dissolution of marriage solemnized between herself and petitioner on 23.10.2004 on the ground of cruelty by demanding additional dowry, and contending that she was abused and harassed by petitioner, mentally and physically, for additional dowry; that she was treated like a maid and was not even provided proper food and was humiliated for additional dowry; that petitioner did not allow her to join him in Canada on the ground that she did not bring the remaining dowry amount of Rs.5 lakhs; and that subsequently, she was allowed to join respondent in Canada, but was necked out of the matrimonial home in Toronto, Canada on 17.07.2007 after beating her.
3. It appears that petitioner did not file any counter-affidavit in the O.P. till date.
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MSR,J crp_178_2021 The stand of the petitioner in IA 1282 of 2019
4. But, he filed Interlocutory Application No.1282 of 2019 under Order VII Rule 11 of Civil Procedure Code, 1908 r/w Order VII Rule 10 of Civil Procedure Code, 1908 to reject the O.P. filed by respondent under Order VII Rule 11 of Civil Procedure Code, 1908; or alternatively to return the same under Order VII Rule 10 of Civil Procedure Code, 1908 to be filed in the place of the competent jurisdiction.
5. In the affidavit filed by petitioner in support of the said O.P., it was contended that there was already a divorce between the parties granted by a competent court in Canada on 08.12.2008, but this was suppressed by respondent; and that it was the respondent who deserted him on 17.07.2007 and did not join him later.
After referring to certain criminal cases filed against him by respondent at Hyderabad, it was alleged that respondent again came back to Canada and resumed her permanent residency and to harass the petitioner and his family members, she is abusing the Indian judicial process.
He alleged that he had already got re-married to another person in Canada and that they also have a child born on 07.12.2012.
According to him, Order VII Rule 11 of Civil Procedure Code, 1908 is not exhaustive, and on the ground of concealment of facts and misrepresentation also a plaint can be rejected.
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MSR,J crp_178_2021 According to him, the marriage took place in Delhi, so there was no cause of action for filing O.P. at Hyderabad.
Alternatively, he contended that the plaint ought to be returned for presentation to the proper Court if it is not rejected under Order VII Rule 11 of Civil Procedure Code, 1908.
The stand of the respondent in IA 1282 of 2019
6. Counter-affidavit was filed by respondent opposing Interlocutory Application No.1282 of 2019 in O.P.No.1386 of 2017.
7. In the said counter-affidavit, the respondent alleged that petitioner had obtained the divorce decree behind the back without her knowledge and without serving any notice on her. She denied that she had deserted petitioner on 17.07.2017. She also denied that she suppressed any material facts.
She denied that she had accepted the divorce granted by the Canadian Court and contended that respondent was trying to misguide this Court. She denied knowledge that petitioner had re-married on 22.07.2011 and was also having a child and contended that petitioner could not have gone through a second marriage, and that the said marriage is void marriage.
She also contended that as per Section 19(3)(a) of the Hindu Marriage Act, 1955 she is entitled to file the O.P. at the place where she is residing on the date of its presentation.
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MSR,J crp_178_2021 Other events which occurred after filing of the IA
8. Thereafter, an additional counter-affidavit was filed by petitioner raising several other contentions as well. He also filed written submissions in the Court below in Interlocutory Application No.1282 of 2019.
The order of the Court below
9. By order dt.25.06.2020, the Court below dismissed Interlocutory Application No.1282 of 2019 in O.P.No.1386 of 2017.
10. After referring to the contentions of both sides, the Court below took note of the legal position that only contents of the O.P. should be looked into while considering an application for rejection of the plaint / O.P.
11. It stated that the O.P. had been filed in 2017 and the respondent had given her address as Banjara Hills, Hyderabad. The Court held that since the respondent stated that she was staying with her parents at Hyderabad on the date of filing of the O.P., and she also filed a criminal case against the petitioner at Hyderabad and that she did not accept the divorce decree of the Canadian Court, it cannot be said that the O.P. was liable to be rejected.
12. It further observed that the question whether the decree of divorce obtained by petitioner is valid or not, has to be decided in a full-fledged enquiry in the O.P.; and that the respondent had not subjected herself to the jurisdiction of the Foreign Court which passed the decree of divorce.
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MSR,J crp_178_2021
13. It also observed that the question whether the respondent accepted the decree of divorce by her acts and deeds and whether the said foreign decree is binding upon parties, is also an issue of fact and law to be decided on merits in the O.P. The present CRP and conusideration by the Court
14. Assailing the same, the present Civil Revision Petition is filed.
15. The counsel for petitioner contended vehemently that under Section 21 of the Hindu Marriage Act, 1955 and Section 10 and 14 of the Family Courts Act, 1984 provisions of Civil Procedure Code are strictly not applicable to matrimonial proceedings.
If so, it was for petitioner to explain how he invoked Order VII Rules 10 and 11 of Civil Procedure Code, 1908 to reject O.P. or to return the O.P. for presentation to the proper Court if the Civil Procedure Code has no application. There was no valid reason forthcoming from the counsel for petitioner in this regard.
I am of the opinion that petitioner cannot invoke the proceedings of the Civil Procedure Code, 1908 and then cannot contend that it does not apply. He cannot be permitted to blow hot and cold.
16. The counsel for petitioner then sought to contend that the Court below was not correct in stating while considering an application for rejection of plaint, only the contents of O.P. and documents filed along ::6::
MSR,J crp_178_2021 with the said O.P. have to be looked into. He sought to cite a decision of a learned single Judge of this Court.
But it was pointed out to him by this Court that the Supreme Court in Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra)1 had reviewed the entire Law on Order VII Rule 11 of Civil Procedure Code, 1908. The Supreme Court had held in that case that the pleas taken by a defendant in the Written Statement and application for rejection of the plaint on the merits would be irrelevant and cannot be adverted to or taken into consideration.
17. The counsel for petitioner then sought to contend that there was a divorce decree obtained by petitioner in Canada on 08.12.2008 from the Superior Court of Justice, Family Court Branch, Toronto, Ontario, Canada.
The respondent had specifically contended in the counter filed by her in the Court below in Interlocutory Application No.1282 of 2019 that the said divorce decree had been obtained behind her back without her knowledge and consent and without serving any notice on her, and that she had not accepted the same at no point of time.
18. As rightly held by the Court below, the question whether the respondent had subject herself to the jurisdiction of the Foreign Court which passed the said decree of divorce and whether she has accepted the 1 (2020) 7 S.C.C. 366 ::7::
MSR,J crp_178_2021 same and whether the said decree is binding on the parties, are issues to be gone into in the main O.P.
19. Moreover, the O.P. had been filed by the respondent seeking divorce in 2017 stating that she was staying with her parents at Hyderabad at the time of filing of the O.P.
20. Under Section 19 of the Hindu Marriage Act when the petitioner in the main O.P. is the wife then the place where she resides at the time of presentation of the O.P. has to be considered for the purpose of territorial jurisdiction. The Aadhaar Card filed by the respondent was secured at Hyderabad. Therefore, it cannot be said at that point of time the Court below at Hyderabad had no jurisdiction to entertain the O.P.
21. The entire pleadings in Interlocutory Application No.1282 of 2019 are based on factual matters which are in the nature of a defence being set up by petitioner in O.P.No.1386 of 2017 and they cannot be taken into account while considering application for rejected of plaint under Order VII Rule 11 of Civil Procedure Code, 1908.
22. It cannot be said that a meaningful reading of the plaint, the O.P. can be said to have been filed by the respondent manifestly vexatious or without any merit, and that it does not disclose a right to sue warranting exercise of power by the Family Court or by this Court under Order VII Rule 11 of Civil Procedure Code, 1908.
23. Even the plea based on Order VII Rule 10 of Civil Procedure Code, 1908 is wholly without merit and the question whether the Court ::8::
MSR,J crp_178_2021 had territorial jurisdiction to entertain the O.P. can be gone into by the Trial Court by framing an issue in that regard and can be considered in the O.P. itself.
24. I therefore do not find any merit in the Revision and it is accordingly dismissed at the stage of admission with costs of Rs.5,000/- to be paid to the High Court Legal Services Committee without four (04) weeks from the date of receipt of copy of the order.
25. Accordingly, the Civil Revision Petition fails and it is dismissed at the stage of admission.
26. As a sequel, miscellaneous petitions pending if any in this Civil Revision Petition, shall stand closed.
___________________________________ JUSTICE M.S. RAMACHANDRA RAO Date:19.02.2021 Ndr