LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Matrimonial Dispute

G. ARAVINTHAN ,
  09 August 2010       Share Bookmark

Court :
Madras High Court
Brief :

Citation :
C.Senthil vs Jothi Jeyalakshmi

 

The order passed in I.A.No.9 of 2006 in HMOP.NO.43 of 2001 (for filing I.A.No.9 of 2006) on the file of the Subordinate Judge, Pollachi, is under challenge in CRP.(NPD).No.705 of 2006. The order passed in I.A.No.10 of 2006 in HMOP.No.66 of 2002 on the file of the Subordinate Judge, Pollachi, is under challenge in CRP.(NPD).No.706 of 2006. 2.The dispute is between the husband and wife. HMOP.No.43 of 2001 on the file of the Subordinate Judge, Pollachi, was filed by the husband C.Senthil under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955, for divorce of his wife. The marriage which took place between the petitioner C.Senthil with the respondent Jothi Jeyalakshmi on 23.06.1993. HMOP.No.66 of 2002 was filed by the wife Jothi Jeyalakshmi against her husband Senthil under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. On 04.02.2005 there was a compromise entered into between the parties. The order passed in HMOP.No.43 of 2001 dated 4.2.2005 reads that on 4.2.2005 both the parties were present along with their respective counsel and a joint endorsement was made by both the parties and in view of the endorsement a decree of divorce was passed by mutual consent. HMOP.No.66 of 2002 filed by the wife Tmt.Jothi Jeyalakshmi was also dismissed as not pressed (Page 23 of the typed set of papers). GWOP.No.34 of 2002 filed by the husband Senthil against his wife Jothi Jeyalakshmi was also closed in view of the joint endorsement (page 24 of the typed set of papers). Subsequently, the wife Jothi Jeyalakshmi filed I.A.No.9 of 2006 under Section 151 of CPC to set aside the order of divorce passed in HMOP.No.43 of 2001 on 4.2.2005 on various grounds. The said application was returned by the Office on 29.11.2005, but the same was represented by the learned counsel for the petitioner, thereafter, the said application was taken on file and assigned I.A.No.9 of 2006. The said numbering of I.A.No.9 of 2006 is under challenge in CRP.NPD.No.705 of 2006. 3.In the affidavit to the petition I.A.No.9 of 2006, the petitioner had raised several grounds, one among them was that without a separate petition under Section 13(b) of the Hindu Marriage Act, 1955, and without giving six months time for granting divorce by mutual consent from the date of filing of consent application, the order of divorce by mutual consent was passed in HMOP.No.43 of 2001. 4.The learned counsel appearing for the revision petitioner would contend that after receiving about Rs.10 lakhs, the wife agreed for a divorce in HMOP.No.43 of 2001 and even after a lapse of six months from the date of order in HMOP.No.43 of 2001, she had not raised any objection till the filing of I.A.No.9 of 2006 on 14.11.2005. These are all the matter to be raised by way of defence in the counter to be filed by the revision petitioner herein as a respondent in I.A.No.9 of 2006 in HMOP.No.43 of 2001. Whether the order passed in HMOP.No.43 of 2001 on 4.2.2005 is valid or not is a matter to be decided by the learned Subordinate Judge, Pollachi in I.A.No.9 of 2006. 5.I.A.No.10 of 2006 was filed by the wife Jothi Jeyalakshmi under Section 151 of CPC in HMOP.No.66 of 2002 with a prayer to set aside the order of dismissal passed in HMOP.No.66 of 2002 on 4.2.2005. The Office has returned the said application on 29.11.2005. Thereafter, the learned counsel for the petitioner had represented the same contending that the petition is maintainable in lieu of the ratio in AIR 1982 Calcatta Page 12, AIR 1985 Karnataka Page 270 and AIR 1973 Allahabad page 183. Thereafter only, the Office has numbered the said application as I.A.No.10 of 2006 in HMOP.No.66 of 2002. In the said application also notice was given to the learned counsel appearing for the respondent on 14.11.2005 itself. Whether the order of dismissal passed in HMOP.No.66 of 2002 is valid, legal or sustainable is a matter to be decided by the learned Subordinate Judge, Pollachi, in the said IA. Under such circumstances, I do not find any reason to entertain CRP.NPD.Nos.705 & 706 of 2006. 6.In fine, both the CRP.NPD.Nos.705 & 706 of 2006 are dismissed. The learned Subordinate Judge, Pollachi, shall dispose of I.A.No.9 of 2006 in HMOP.No.43 of 2001 and I.A.No.10 of 2006 in HMOP.No.66 of 2002 pending on his file within four weeks from this date after giving opportunity to the respondent in those applications to file his counter, in accordance with law. No costs. Connected Miscellaneous Petitions are closed. 05.01.2009

 
"Loved reading this piece by G. ARAVINTHAN?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"



Published in Family Law
Views : 2925




Comments