IMPORTANT POINT
The main legal point established is that for Section 10 of the Code of Civil Procedure to apply, there must be identity of the matter in issue in both suits, and the issue must be directly and substantially in issue in a previously instituted suit between the same parties.

ORDER :

1. Heard learned advocates for the parties.

2. By way of the present petition filed under Article 227 of the Constitution of India, the petitioner has challenged the order dated 08.02.2023 passed below Ex.34 by the learned Principal Judge, Family Court, Gandhinagar in Family Suit No. 107 of 2022. The petitioner has prayed for the following reliefs:

“17(A) That the Hon’ble Court be pleased to quash and set aside order dated 8.2.2023 passed below Exhibit 34 by the Principal Judge, Family Court, Gandhinagar in Family Suit No. 107 of 2018 and consequently, allow the application at Exhibit 34.

(B) That pending the hearing and final disposal of this petition, the Hon’ble Court be pleased to stay further proceedings in Family Suit No. 107 of 2018 pending before the Principal Judge, Family Court, Gandhinagar.

(C) For ad-interim reliefs in terms of prayer (B) above.

(D) For such other and further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

3. The brief facts narrated in the present petition are as under:

3.1 The marriage between the present petitioner and the respondent was solemnized on 24.07.2016 at Gurudwara, Ahmedabad, Gujarat as per the Hindu rites and ceremony. From the said wedlock baby girl Prishi was born on 04.11.2018. Thereafter, the disputes cropped up between the petitioner and respondent. In July 2021, the respondent left the matrimonial home of the petitioner alongwith her daughter. Respondent and Prishi are as on date staying at her parental home.

4. The petitioner-original opponent had filed a family suit under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the learned Family Court, Pune being petition A No. 682 of 2022 against the respondent-wife. Thereafter, the present respondent-wife filed a suit being family Suit No. 107 of 2022 before the learned Family Court, Gandhinagar under Section 13 of the Hindu Marriage Act, 1955 for decree of divorce. Pending Family Suit No. 107 of 2022, application at Ex.34 came to filed by the petitioner - husband praying for staying the suit under Section 10 of the Civil Procedure Code till final disposal of the petition A No. 682 of 2022 which is pending before the learned Family Court, Pune. The learned Family Court, vide order dated 08.02.2023, rejected the application. Against this order, petitioner is before this Court.

5. Learned advocate for the petitioner has very fairly submitted that the decision which would be given by the learned Family Court, Pune under the proceedings of restitution of conjugal rights would not bind the proceedings which are initiated by the respondent – wife under Section 13 of the Hindu Marriage Act, 1955. However, it is submitted that looking to the nature of allegations and the contentions raised by both the parties in their respective litigations, issues are directly and substantially the same and hence, the provisions of Section 10 of the Code would be applicable.

5.1 It is further submitted that if the proceedings under Section 13 of the Act which have been initiated by the respondent are not stayed and if both the proceedings are allowed to proceed it would lead to chaos and different Courts would decide the common area of dispute differently. Neither the parties have applied for transfer of either of the proceedings by invoking the jurisdiction of Section 25 of the Code of Civil Procedure.

5.2 Learned advocate for the petitioner has relied upon the following decisions:

(i) Narpat Singh Gehlot vs. Krishna Kumar and Another, 1973 SCC Online Raj. 174

(ii) Surekha vs. Dilipdas, 1998 SCC Online M.P. 641

5.3 By relying upon the decision of Narpatsinh (supra), learned advocate for the petitioner has submitted that the allegations in the Written Statement filed by the petitioner against the petition under Section 13 of the Act would be same as that of the allegations made against the respondent in the proceedings initiated under Section 9 of the Hindu Marriage Act, 1955.

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