Sanjeev Indravadan Dani vs Rupal Sanjeev Dani

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(Bom) 1506

High Court of Judicature at Bombay
THE HONOURABLE CHIEF JUSTICE MR. SWATANTER KUMAR & THE
HONOURABLE MR. JUSTICE A.M. KHANWILKAR
Sanjeev Indravadan Dani
Versus
Mrs. Rupal Sanjeev Dani
Letters Patent Appeal No.203 of 2009 in Writ Petition No.6485 of 2008
Decided on : 12-11-2009

Advocates appeared:
For the Appellant:Ms. Kumud Bhatia, Advocate. For the Respondent:Vikramaditya Deshmukh, Advocate.

Headnote:Hindu Marriage Act, 1955 - Section 9 - Civil Procedure Code, 1908, Sections 10 and 151 - Restitution of conjugal rights - Petition for by husband/appellant - Wife-respondent filed petition for divorce on ground of cruelty and desertion - Appellant/husband sought stay of divorce petition under Section 10 of CPC - Opposed by respondent and sought permission for clubbing of two petitions - Family Court rejected application of appellant but allowed application of respondent-wife - Writ petition against by appellant - Dismissed by single Judge - Letters Patent Appeal against - Single Judge rightly upheld order of Family Court directing consolidation of two petitions under Section 151 of CPC appeal devoid of merit - Dismissed with costs of Rs. 5,000/- payable to respondent-wife. - The Single Judge has relied on the observations in the case of Kalpana Patil. In that case the wife challenged the order passed by the lower Court rejecting her application for stay of the proceeding filed by the husband under Section 10 of the CPC. The Court in paragraph 6 opined that since the parties to both the proceedings were the same i.e. husband and wife and one petition is filed by wife for divorce on the ground of cruelty whereas another petition was filed by the husband for restitution of conjugal rights on the ground of desertion, therefore, evidence to be led would be almost common in both the proceedings. It then noticed that both the petitions were pending before the same Court. In the circumstances, the High Court was of the view that it would be in the interest of justice that both the proceedings are tried and decided together. In cases where the defence of the wife in the petition for restitution of conjugal rights filed by the husband would invariably be her case in the case of petition filed by her for divorce. Besides, denying the allegations in the petition for divorce filed by the wife, the husband would reiterate his case stated by him in the petition for restitution of conjugal rights. In other words, the defence of both sides would be overlapping and common to a greater extent in the respective petitions. Naturally therefore evidence to be led by the parties would be common. In such a situation the Family Court instead of entertaining the request of the husband to stay the subsequently petition filed by the wife for relief of divorce ought to consider it proper to consolidate trial of both the petitions. That approach would obviously sub-serve the larger interest of all concerned including the avoid multiplicity of trial, delay and conflict in decision on the same matters. As a consequence, the order as passed in exercise of inherent power of the Court to consolidate trial of two petitions in the fact situation of the present case, is un-exception able. It has been rightly upheld by the Single Judge.
       Court have no hesitation in taking the view that the Family Court has ample powers to order consolidation of trial of two petitions pending before it between the same parties even if the same were claiming entirely different reliefs. Such power can be exercised with reference to the inherent powers under Section 151 of the Code. That power is in no way impacted by provisions such as Section 21-A of the Hindu Marriage Act.
       For the reasons already recorded, have no hesitation in upholding the order of the Family Court of passing discretionary order in the ends of justice in favour of the respondent wife in the fact situation of the present case. Since have taken the view that there is inherent power in the Family Court to consolidate the trial of two petitions pending before it between the same parties even though different reliefs are claimed in the concerned petitions and if that inherent power were to be exercised in a given case, the question of entertaining application for stay of subsequent petition under Section 10 of the Code would not arise.
       The Family Court had rightly rejected the application preferred by the appellant Exh. 5 praying for stay of petition instituted by the respondent wife for relief of divorce.
       Accordingly, this appeal fails being devoid of merits. Hence the same is dismissed with costs quantified at Rs. 5,000/- to be paid to the respondent. Order accordingly.

Judgment :-

A.M. Khanwilkar, J.

1. Heard. Admit.

2. Counsel for the Respondent waives service. As short question is involved, Appeal was proceeded for final hearing forthwith at admission stage by consent.

3. This Appeal takes exception to the Judgment and order passed by the learned Single Judge of this Court dated 10th November, 2008 in Writ Petition No.6485 of 2008 thereby dismissing the Writ Petition preferred by the Appellant and confirming the order passed by the Family Court, Bandra, Mumbai dated 21st June, 2008 below Exh. 5 and 7 in M.J.Petition No.A-218 of 2007.

4. Briefly stated, the Appellant(husband) instituted a Petition for restitution of conjugal rights, being M.J.Petition No.A-1773 of 2004, in the Family Court of Bombay at Bandra against the Respondent(wife) some time on 2nd November, 2004, on the assertion that they had solemnised their marriage on 27th November, 1988 and that two children were born out of the said wedlock, i.e., one daughter and one son now aged about 17 and 7 years respectively. It is stated that the Appellant, on account of his employment with a multinational firm was posted at Delhi as “Director” of Pharma Division, in March, 2001. The said posting was the result of natural progression in Appellant’s career. However, after the Appellant shifted to Delhi, the Respondent was reluctant to stay with him alongwith two children at Delhi for untenable reasons. As a result, differences arose between them and eventually the Respondent left the matrimonial home alongwith two children and refused to join the Appellant at Delhi. It is in this backdrop Petition for restitution of conjugal rights has been instituted by the Appellant. The Respondent filed her written statement in the said proceedings on 27th September, 2005, contesting the claim of the Appellant. According to the Respondent, it is the Appellant who was responsible for throwing out her from her matrimonial home. As a result of which, she was forced to stay at Mumbai alongwith her two children. It is not necessary to elaborate on the plea taken by both the sides on the merits of the controversy for answering the issue that arises for our consideration in the present proceedings.

5. The Respondent thereafter, filed a Petition before the Family Court of Bombay at Bandra being Petition No.A-218 of 2007 for divorce on the ground of cruelty and desertion. That Petition was filed on 16th January, 2007. The Appellant therefore, filed application (Exh.5) before the Family Court praying for stay of the subsequent Petition filed by the Respondent, by invoking provisions of Section 10 of the CPC. This Application was filed on 26th April, 2007. In the said Application, the Appellant has stated that the Respondent in response to his Petition for restitution of conjugal rights filed written statement belatedly, after the period of 90 days prescribed by law. In the said written statement however, she has merely opposed the grant of relief of restitution of conjugal rights under section 9 of the Hindu Marriage Act. According to the Appellant, in the written statement filed by the Respondent, no plea is taken about the alleged cruelty prior to April, 2002 pertaining to time period for which the Respondent had opportunity to plead the same in the Written Statement. Those matters have been referred to in the subsequent Petition filed by the Respondent praying for divorce under section 13(IA) and (IB) of the Hindu Marriage Act. According to the Appellant, the subsequent petition filed by the Respondent is obviously a counter blast to the Petition filed by the Appellant for relief of restitution of conjugal rights. It is then stated in the said application (Exh.5) that having regard to the plea taken in both the proceedings and with regard to the reliefs claimed in the said Petitions, in order to avoid conflicting decisions, in the interest of justice, it is appropriate that subsequent Petition filed by the Respondent after more than two years from the date o

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2009 Supreme(Bom) 1506

High Court of Judicature at Bombay THE HONOURABLE CHIEF JUSTICE MR. SWATANTER KUMAR & THE HONOURABLE MR. JUSTICE A.M. KHANWILKAR Sanjeev Indravadan Dani Versus Mrs. Rupal Sanjeev Dani Letters Patent Appeal No.203 of 2009 in Writ Petition No.6485 of 2008Decided on : 12-11-2009

High Court of Judicature at Bombay
THE HONOURABLE CHIEF JUSTICE MR. SWATANTER KUMAR & THE
HONOURABLE MR. JUSTICE A.M. KHANWILKAR
Sanjeev Indravadan Dani
Versus
Mrs. Rupal Sanjeev Dani
Letters Patent Appeal No.203 of 2009 in Writ Petition No.6485 of 2008
Decided on : 12-11-2009