IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.07.2024 C O R A M T HE HONOURABLE MR. JUSTICE M . NIRMAL KUMAR C.R.P.(PD).No.2621 of 2024 and C.M.P.No.13778 of 2024 Dr. Senthil Kumar Elangovan ... Petitioner Versus Dr.Gnanakalyani ... Respondent PRAYER: The Civil Revision Petition is filed under Article 227 of the Constitution of India to direct the Family Court, Chennai, to number O.P.S.R.No.1591 of 2024 while O.P.No.3579 of 2015 remains pending.

For Petitioner : Ms.A.Arulmozhi For Respondent :

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O R D E R

The petitioner/husband had filed a petition under Section 13 B of Hindu Marriage Act, for mutual divorce from the respondent/wife. This petition was filed on 15.03.2024 and it was returned on 27.03.2024 for the following reasons:-

O.P.SR.1591/24

27.03.2024 Returned

1. II petitioner photo to be affixed in this petition. Front page.

2. Nature of document to be mentioned in list of document No.1

3. Blanks to be filled up.

4. OP - MC pending.

2. The learned counsel for the petitioner submitted that in the mutual consent petition at paragraph No.6, sub-clause (8) it has been clearly mentioned that the petitioner had earlier filed a petition under Section 13 (1) (ia) of the Hindu Marriage Act on the ground of cruelty. That case is pending for almost nine years though both sides evidence completed and arguments advanced in April, 2024. Though arguments completed by either side, the case adjourned recording part-heard and the case is still pending. In the meantime, the petitioner and the respondent now come to mutual understanding to file a consent divorce petition.

3. The Registry of the Family Court returned the petition copy, recording reasons, one of the reasons is that O.P. and M.C are pending. As regards, M.C.No.220 of 2023, the same disposed by order dated 22.12.2023. This fact not considered. As regards, O.P.No.3579 of 2015, it is clearly mentioned that the same is pending and it is filed under Section 13(1)(i-a) on the ground of cruelty.

4. The learned counsel for the petitioner further submits that pendency of O.P.No.3579 of 2015 is not a bar for the petitioner and respondent to file a petition, seeking divorce by mutual consent under Section 13-B of the Hindu Marriage Act. The petition ought to be taken on file and for better appreciation and to avoid contra decision, after numbering the mutual consent divorce petition, the same should be placed before the II Additional Family Court, where O.P.No.3579 of 2015 is pending.

5. Admittedly, the petitioner and the respondent had earlier filed a petition for divorce in O.P.No.3579 of 2015, which is pending before the II Additional Family Court, Chennai on the ground of cruelty and now the parties filed a petition for divorce by mutual consent. The apprehension of the petitioner is that after withdrawal of O.P.No.3579 of 2015, in the event of one of the parties withdrawing the mutual consent, again the petitioner will have to initiate from the beginning file petition for divorce, thereafter the case will be listed chronologically and it will take years to cross each stage, already nine years have passed for O.P.No.3579 of 2015 to reach the present stage. If petitioner to file fresh petition again in the event of any such eventuality, it will take another decade for the petitioner and for the respondent to get a relief.

6. In view of the same, by way of abundant caution, O.P.No.3579 of 2015 be kept as it is, despite the consent divorce petition filed by the parties. Only after the case is numbered and listed, both the parties can appear and give their consent before the Presiding Officer. Hence, filing of mutual consent petition by the petitioner, despite pending O.P.No.3579 of 2015, between the same parties is not a bar.

7. The Registry of Family Court is directed to entertain the petition filed in O.P.SR.No.1591 of 2024, if it is otherwise in order. After numbering O.P.SR.No.1591 of 2024, the same to be listed before the II Additional Judge, Family Court, Chennai, who shall list