KULWINDER SINGH Vs. MANMOHAN KAUR

JUDGEMENT

(1.) The present petition is directed against the order dtd. 20/3/2017 passed by the Additional District Judge, Fatehgarh Sahib (for short - the Trial Court) through which an application filed by the petitioner seeking withdrawal of his divorce petition with permission to file a fresh one on the same cause has been dismissed.

(2.) The facts, in brief, which are required to be noticed for adjudicating upon the present petition are that the petitioner filed a petition under Sec. 13 of the Hindu Marriage Act, 1955 (for short - the Act) for dissolution of the marriage between the parties. Divorce was sought on the ground of cruelty. It was further mentioned in the divorce petition that on 23/5/2013, the respondent-wife had refused to join the company of the petitioner occasioning the filing of the divorce petition on the very next day i.e. 24/5/2013. Thereafter, issues were framed by the Trial Court including the issue as to whether the respondent had treated the petitioner with cruelty. No other issue pertaining to any other ground for divorce as available under Sec. 13 of the Act was framed. It is the admitted position that neither party challenged or objected to the issues framed. Thereafter, the parties led their respective evidence. When final arguments were being addressed, the petitioner filed an application under Order 23 Rule 1 CPC seeking withdrawal of his divorce petition with permission to file a fresh petition on the same cause which through the order impugned in the present proceedings has been dismissed.

(3.) Learned counsel for the petitioner submits that the petitioner seeks to withdraw his petition with permission to file a fresh one on the same cause as his petition contained a formal defect. According to him, though averments had been made in the petition with regard to the respondent-wife having deserted the petitioner but since between the alleged date when the respondent-wife had deserted him and the filing of his petition the statutory period of 02 years had not elapsed, the petitioner's petition being premature was defective and therefore, the Trial Court erred in not permitting the petitioner to withdraw his divorce petition with permission to file a fresh one on the same cause.