$~3 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 29.08.2024 + MAT.APP.(F.C.) 176/2024 & CM APPL. 30812/2024 VIJAY SINGH .....Appellant Through: Md. Azam Ansari and Md Maroof, Advs. versus SMT. JYOTI YADAV .....Respondent Through: Ms Shreya Gulati, Adv.

CORAM:

HON'BLE MR. JUSTICE RAJIV SHAKDHER HON'BLE MR. JUSTICE AMIT BANSAL [Physical Hearing/Hybrid Hearing (as per request)]

1. This appeal is directed against the impugned judgment and order dated

30.03.2024, passed by the family court.

2. Via the impugned judgment, the family court has rendered its decision on an application preferred by the appellant/petitioner to withdraw the divorce action instituted by him.

2.1 The trial court while permitting the appellant/petitioner to withdraw the divorce petition, refused to grant permission to file a fresh action in respect of the same subject matter.

Signature Not Verified Digitally Signed By:TARUN MAT.APP.(F.C.) 176/2024 Page 1 of 7

2.2 Furthermore, the family court imposed costs of Rs.51,000/- towards expenses incurred by the respondent in defending the divorce action, and incidental expenses. Although the respondent had sought costs amounting to Rs.2.50 lakhs, the family court concluded that Rs.51,000/- towards costs would suffice.

3. Mr Azam Ansari, learned counsel, who appears on behalf of the appellant/petitioner, submits that the family court has erred on both counts.

3.1 Mr Anzari submits that the family court could not have allowed simpliciter the withdrawal of the divorce action, while emasculating the right of the appellant to file a fresh divorce action.

3.2 As regards the costs, Mr Ansari submits that the family court could not have imposed costs in excess of Rs.3000/-.

4. In support of his submission, Mr Ansari has drawn our attention to Section 35A of the Code of Civil Procedure, 1908 [in short, “CPC”]. Furthermore, Mr Ansari has also drawn our attention to the judgment rendered by the learned Single Judge of this Court in Jasveer Lal Gour vs. M/s Delcap Financial Services Pvt. Ltd., 2023:DHC:2531.

5. Before we proceed further, we would like to record certain uncontested facts that are relevant for the purpose of taking a view one way or the other qua the impugned judgement and order.

6. Concededly, the appellant/petitioner had filed the divorce action on or about 11.07.2022 in the concerned court in Firozabad, Uttar Pradesh.

7. The respondent, on the other hand, had moved the Supreme Court by way of a transfer petition, which was lodged on 17.10.2022. The Supreme Signature Not Verified Digitally Signed By:TARUN MAT.APP.(F.C.) 176/2024 Page 2 of 7 Court transferred the divorce action preferred by the appellant to the concerned family court in Saket, New Delhi via the order dated 06.12.2022.

8. In addition to the divorce action, the appellant lodged a petition under Section 9 of the Hindu Marriage Act, 1955 [in short “1955 Act”] on 09.11.2022. Via the subject petition, the appellant sought restoration of conjugal rights.

8.1 This petition as well, stood transferred to the concerned family court in Saket, New Delhi, based on the transfer petition preferred by the respondent. The order concerning transfer of the Section 9 petition was passed by the Supreme Court on 16.04.2024.

9. The application filed for withdrawing the divorce action, which was preferred pursuant to the order of the Supreme Court for transfer of the divorce petition to the concerned family court in Saket, New Delhi, simply sought withdrawal of the divorce action.

9.1 The appellant, concededly, did not seek permission to file a fresh divorce action.

10 However, our attention has been drawn to the written submissions filed on behalf of the appellant before the family court, wherein there is a broad submission made on behalf of the appellant that in case he does not succeed in the Section 9 petition or is unable to have the respondent comply with a judgement and decree passed in his favour on the Section 9 petition, he may, at that juncture, wish to file a fr