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2024 Supreme(All) 231
IN THE HIGH COURT OF ALLAHABAD
VIVEK KUMAR BIRLA, DONADI RAMESH, JJ.
Richa Mumgaie – Appellant
Versus
Harendra Prasad – Respondent
First Appeal No. 245 Of 2024
Decided On : 20-03-2024
For the Appellant : Ritesh Srivastava, Shweta Singh.
IMPORTANT POINT
Condonation of acts, if subsequently revived or repeated, does not warrant rejection of the plaint.
Headnote:
Condonation - Hindu Marriage Act - Section 13 (1) (i) - Order VII Rule 11, Section 23
Fact of the Case:
The appellant-wife filed a divorce petition under Section 13 (1) (i) of the Hindu Marriage Act. The court rejected the application moved by the wife under Order VII Rule 11(d) CPC read with Section 23 (1) (b) of the Act, citing that the matter was at the stage of cross-examination of DW-1 and had been expedited by the Court.
Finding of the Court:
The court found that the divorce petition disclosed a cause of action, and the condonation of the wife's acts by the husband did not warrant rejection of the plaint. The court directed the lower court to proceed expeditiously as per the previous direction.
Issues: The main issue was whether the application under Order VII Rule 11 CPC read with Section 23 (1) (b) of the Act should be rejected due to the expedited nature of the case.
Ratio Decidendi: The court held that condonation of acts, if subsequently revived or repeated, does not warrant rejection of the plaint. The court also emphasized that the entire contents of the plaint must be considered, and a single condonation of acts by itself would not be sufficient to reject the plaint.
Final Decision: The appeal was dismissed, and the lower court was directed to proceed expeditiously as previously directed.
JUDGMENT :
1. Heard Sri Ritesh Srivastava, learned counsel for the appellant.
2. Present appeal has been filed challenging the order judgment and order dated 16.02.2024 passed by Principal Judge, Family Court, Ghaziabad in Case No. 596 of 2020, under Section 13 (1) (i) of the Hindu Marriage Act.
3. By the impugned order, the application moved by the appellant-wife (hereinafter referred to as 'wife') under Order VII Rule 11(d) CPC read with Section 23 (1) (b) of the Hindu Marriage Act (hereinafter referred to as the Act) on the ground that after discussing the case law on the interpretation of the word 'condonation of the act' as given under Section 23 of the Act. The court below rejected the application and held that the divorce petition has been moved on the ground of cruelty and adultery with the averments made in the petition and the matter is at the stage of cross-examination of DW-1 coupled with the fact that the matter has been expedited by this Court, no such application can be entertained at this stage.
4. By drawing attention to paragraph 9 of the divorce petition, submission of learned counsel for the appellant is that the act of wife was condonded by the husband and therefore, in view of the provisions of Order VII Rule 11(d) CPC read with Section 23 (1) (b) of the Act, as the act has been condoned in the plaint itself, therefore, the plaint ought to have been rejected. He further submits that the sole reason for rejecting such application is that the matter has been expedited by this Court, therefore, he refused to entertain the application.
5. We have considered the submission and perused the record.
6. For ready reference, the provisions of Order VII Rule 11 and Section 23 of the Hindu Marriage Act are quoted as under:
Order VII Rule 11 CPC
“11. Rejection of plaint.- The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails comply with the provision of Rule 9.
Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.
Section 23 of the Hindu Marriage Act
23. Decree in proceedings.—(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
[(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and]
(c) [the petition (not being a petitio
