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2010 Supreme(Cal) 1339
IN THE HIGH COURT OF CALCUTTA
Prasenjit Mandal, J.
Soumitra Roy
Versus
Munmun Roy
C.O. No. 1396 of 2010
Decided On: November 24, 2010
For the petitioner: Mr. Priyobrata Mukherjee.
For the opposite party: Mr. D. Mukherjee, Mr. Debjit Mukherjee, Mr. Partha Ganguly.
The timing and intention behind filing legal applications can be considered by the court in determining their priority and relevance to the ongoing proceedings.
Headnote:
Order 32 Rule 15 of the C.P.C. - Matrimonial Suit - The court found that the husband's application under Order 32 Rule 15 of the C.P.C. to determine whether the wife is a person of unsound mind was filed at a later stage of the proceedings, seemingly to avoid payment of alimony. The court held that the application should be considered after the disposal of the application for alimony and litigation costs.
Fact of the Case:
The husband filed a matrimonial suit against the wife and later filed an application to determine whether the wife is a person of unsound mind during the cross-examination of the wife in a separate case for alimony.
Finding of the Court:
The court found that the husband's application under Order 32 Rule 15 of the C.P.C. was filed at a later stage seemingly to avoid payment of alimony. The court held that the application should be considered after the disposal of the application for alimony and litigation costs.
Issues: The issue was whether the learned Trial Judge was justified in keeping the application under Order 32 Rule 15 of the C.P.C. pending without taking the same first for decision.
Ratio Decidendi: The court held that the husband's application under Order 32 Rule 15 of the C.P.C. should be considered after the disposal of the application for alimony and litigation costs.
Final Decision: The application under Order 32 Rule 15 of the C.P.C. was disposed of in the manner indicated, and there was no order as to costs.
Prasenjit Mandal, J.: This application is at the instance of the husband and is directed against the order dated February 15, 2010 passed by the learned Additional District Judge, Fifth Court, Howrah in Misc. Case No.1 of 2008 arising out of the Matrimonial Suit No.644 of 2007.
2. The short fact is that the husband filed a matrimonial suit being Matrimonial Suit No.644 of 2007 under Section 24 alternatively under Section 27 of the Special Marriage Act and/or under Section 12 alternatively under Section 13 of the Hindu Marriage Act.
In that suit, the wife/opposite party herein appeared and filed an application under Section 36 of the Special Marriage Act praying for alimony. The husband/petitioner filed a written objection against that petition and the application for alimony has been numbered as Misc. Case No.1 of 2008 which is pending for decision. In that misc. case, the evidence on behalf of the wife was being recorded. During her cross-examination, the husband/petitioner herein filed an application for determining whether the wife/opposite party is a person of unsound mind. That application was kept with the record by the impugned order with the observation that the application should be considered after cross-examination of the wife in the misc. case. Being aggrieved by the impugned order, this application has been preferred.
3. The question that arises for decision in this application is that if the learned Trial Judge is justified in keeping the application under Order 32 Rule 15 of the C.P.C. pending without taking the same first for decision.
4. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the husband/petitioner filed the said matrimonial suit against the wife. On enquiry, it is learnt that at the time of filing of the said matrimonial suit, the husband did not describe the respondent as a person of unsound mind. He filed the said suit as if the wife is a person of sound mind. During enquiry, it also revealed that the wife filed an application under Section 125 of the Code of Criminal Procedure and an order of maintenance was granted in favour of the wife. In that case, the husband did not take the stand that the wife is a person of unsound mind. Even against the application filed by the petitioner for alimony, the husband filed a written objection stating various grounds to defend his stand to resist the claim for alimony, but he never stated that the wife is a person of unsound mind. While the cross-examination of the wife was going on, the husband filed the application stating that the wife is a person of unsound mind and so an enquiry was to be held first whether the wife is a person of unsound mind. In support of his contention, the applicant has filed a number of prescriptions of a Neuro Psychiatrist to show that the wife is under treatment of a doctor since for a long time even prior to the date of marriage. Thus, mr. Mukherjee, appearing for the petitioner, submits that unless it is determined under Order 32 Rule 15 of the C.P.C. whether the wife is a person of unsound mind, the matrimonial proceeding cannot proceed and the wife cannot get any order of alimony.
5. The husband has filed such application at a time when further cross-examination of the wife was being done. So, it could well be presumed that such a course was adopted only to avoid payment of alimony. It is not a matter of consideration at present that the wife is getting maintenance as per order of the learned Magistrate in a proceeding under Section 125 of the Cr.P.C. If any amount is being paid in that proceeding, such payment of maintenance shall be considered at the time of disposal of the application for alimony and litigation costs. Anyway, since the application for alimony has been filed to have maintenance and the litigation costs to defend the suit filed by the husband, I am of the view that the learned Trial Judge has rightly observed that the application should be kept w
