GIRISH T.N. Vs. SOWMYA V.

JUDGEMENT

(1.) Mr.Shivaraj N.Arali, learned counsel for the appellant. None for the respondent though served. Heard on the question of admission. In this appeal, the appellant has assailed the validity of the order dtd. 18/10/2021 passed by the Family Court by which the petition filed by the appellant under Sec. 25 of the Guardian and Wards Act , 1890 (hereinafter referred to as 'the Act' for short) has been held to be not maintainable and the same has been dismissed. The marriage between the parties was performed on 12/6/2005 and thereafter, a girl child was born to them on 24/12/2010 namely Rachetha. Thereafter, the appellant initiated a proceeding under Sec. 30 of the Hindu Marriage Act, 1955 in which a compromise petition is filed by the parties under Order 23 Rule 3 of the Code of Civil Procedure, 1908. Clause 2 of the compromise petition contained stipulation to which appellant had agreed that the custody of the child namely Rachetha will be with the respondent only. Thereafter, on the basis of the compromise arrived at between the parties, the Family Court by judgment and decree dtd. 30/10/2019, disposed of the petition filed by the appellant in terms of the compromise arrived at between the parties. Thereafter in the month of September 2020, the appellant filed a petition under Sec. 25 of the Act seeking custody of the child. The Family Court vide impugned order inter alia held that subsequent proceedings initiated by the appellant were barred under Order 23 Rule 3A of the CPC. Learned counsel for the appellant submitted that the proceedings under Sec. 25 of the Act was initiated by the appellant on the basis of events subsequent to the passing of the decree dtd. 30/10/2019.

(2.) We have considered the submissions made on both sides and have perused the record. Paragraph 24 of the petition is extracted below for the facility of reference:

(3.) It is trite law that a litigant cannot be permitted to initiate a proceeding twice on the same cause of action. However, in the facts and circumstances of the case, the appellant is granted liberty to initiate proceeding under Sec. 25 of the Act on the basis of the cause of action which may have accrued to the appellant subsequent to the passing of the judgment and decree dtd. 30/10/2019 passed with consent of the parties. With the aforesaid liberty, the appeal is disposed of.