Case Note & Summary
The petitioner, R. Harish, filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955, in the Family Court at Kolar, seeking dissolution of his marriage with the respondent, Smt. M.V. Shalini, which was solemnized on 26.04.2012. The respondent contested the case by filing a statement of objections. Subsequently, the petitioner filed I.A.No.5 under Order 23 Rule 1(3) of the Code of Civil Procedure, 1908, seeking permission to withdraw the divorce petition with liberty to file a fresh petition on the same cause of action. The Family Court dismissed the application on 08.04.2014, finding it devoid of merit. Aggrieved, the petitioner filed a writ petition under Articles 226 and 227 of the Constitution of India before the High Court of Karnataka. The petitioner's counsel argued that the Family Court had not considered the application in the correct perspective and that the impugned order was irrational and vitiated. The High Court, after hearing the preliminary submissions, found that the Family Court had erred in dismissing the application. The High Court allowed the writ petition, quashed the impugned order dated 08.04.2014, and directed the Family Court to allow I.A.No.5, permitting the petitioner to withdraw M.C.No.153/2013 with liberty to file a fresh petition on the same cause of action.
Headnote
A) Civil Procedure - Withdrawal of Suit - Order 23 Rule 1 CPC - Liberty to File Fresh Suit - The petitioner filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955, and later sought to withdraw it with liberty to file a fresh petition on the same cause of action. The Family Court dismissed the application. The High Court held that the Family Court failed to consider the application in the correct perspective and that the impugned order was irrational and vitiated. The petition was allowed, and the Family Court was directed to permit withdrawal with liberty to file a fresh petition. (Paras 2-4)
Issue of Consideration
Whether the Family Court erred in dismissing the petitioner's application under Order 23 Rule 1(3) CPC seeking withdrawal of the divorce petition with liberty to file a fresh petition on the same cause of action.
Final Decision
The writ petition is allowed. The impugned order dated 08.04.2014 passed on I.A.No.5 in M.C.No.153/2013 by the Family Court at Kolar is quashed. The Family Court is directed to allow I.A.No.5 and permit the petitioner to withdraw M.C.No.153/2013 with liberty to file a fresh petition on the same cause of action.
Law Points
- Withdrawal of suit with liberty to file fresh suit
- Order 23 Rule 1 CPC
- Hindu Marriage Act 1955 Section 13
- Family Court jurisdiction
Case Details
2014 LawText (KAR) (08) 2
Writ Petition No.28168/2014 (GM-FC)
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Nature of Litigation
Writ petition challenging the dismissal of an application for withdrawal of a divorce petition with liberty to file a fresh petition.
Remedy Sought
Quashing of the Family Court order dated 08.04.2014 and direction to allow I.A.No.5 for withdrawal with liberty.
Filing Reason
The Family Court dismissed the petitioner's application under Order 23 Rule 1(3) CPC seeking withdrawal of the divorce petition with liberty to file a fresh petition.
Previous Decisions
The Family Court at Kolar dismissed I.A.No.5 in M.C.No.153/2013 on 08.04.2014.
Issues
Whether the Family Court erred in dismissing the application for withdrawal with liberty to file a fresh petition under Order 23 Rule 1(3) CPC.
Submissions/Arguments
The petitioner's counsel contended that the Family Court did not consider I.A.No.5 in the correct perspective and the impugned order was irrational and vitiated.
Ratio Decidendi
The Family Court failed to consider the application for withdrawal with liberty in the correct perspective, and the dismissal was irrational and vitiated. The petitioner is entitled to withdraw the petition with liberty to file a fresh petition under Order 23 Rule 1(3) CPC.
Judgment Excerpts
This writ petition is directed against an order dated 08.04.2014, passed on I.A.No.5, filed in M.C.No.153/2013, by the learned Judge of the Family Court at Kolar.
Sri M. Vishwajith Rai, learned advocate, contended that despite the petitioner having made out a case for grant of the prayer, the Court below without considering I.A.No.5 in the correct perspective has dismissed the same.
In the result, the writ petition is allowed. The impugned order dated 08.04.2014 passed on I.A.No.5 in M.C.No.153/2013 by the Family Court at Kolar is quashed. The Family Court is directed to allow I.A.No.5 and permit the petitioner to withdraw M.C.No.153/2013 with liberty to file a fresh petition on the same cause of action.
Procedural History
The petitioner filed M.C.No.153/2013 under Section 13 of the Hindu Marriage Act, 1955, in the Family Court at Kolar for divorce. The respondent filed objections. The petitioner filed I.A.No.5 under Order 23 Rule 1(3) CPC seeking withdrawal with liberty to file a fresh petition. The Family Court dismissed I.A.No.5 on 08.04.2014. The petitioner then filed the present writ petition under Articles 226 and 227 of the Constitution of India before the High Court of Karnataka.
Acts & Sections
- Code of Civil Procedure, 1908: Order 23 Rule 1(3)
- Hindu Marriage Act, 1955: Section 13
- Constitution of India: Articles 226, 227
