IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 23297 of 2009(R) -------------------------- OP.231/2008 of FAMILY COURT,ERNAKULAM .................... PETITIONER: --------------- SUMA P.MALLAN,AGED 32 YEARS, D/O.SRI.PADMANABHA MALLAN,RESIDING AT PRANATH HOUSE, SRINGAPURAM,KODUNGALLUR-680664. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.N.K.SUBRAMANIAN RESPONDENT: --------------- SREKANT S.MALLIA,AGED 36 YEARS, S/O.SRI.V.S.MALLIA,RESIDING AT PALACKAL HOUSE, 8/1121,DR.PADIAR'S COMPOUND,SOUTH CHERLAI, COCHIN-68002. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 23297 OF 2009 ============================ DATED THIS THE 17TH DAY OF AUGUST 2009 JUDGMENT Basant,J. The petitioner-wife has come to this Court allegedly aggrieved by Ext.P7 order passed by the Family Court. 2. A brief narration of facts appear to be relevant. The parties are Hindus. Their engagement took place on 22-8-2002. The marriage was solemnised on 2-2-2003 in accordance with Hindu religious rites. The spouses started separate residence with effect from 17-8-2003. On 17-1-2004, an application for declaration that the marriage is null and void was filed by the respondent herein/husband. In that petition, alternatively he claimed divorce under Section 13(1)(ia) of the Hindu Marriage Act – on the ground of cruelty. While that petition was pending, the respondent-husband filed an application for amendment of pleadings to incorporate the claim for divorce on the ground of WPC.23297/2009 -2- desertion also – under Section 13(1)(ib) of the Hindu Marriage Act. 3. The petitioner-wife was examined by a Medical Board on the directions of the Family Court. Report was secured. The respondent-husband then realised that his claim for declaration of nullity of marriage will not lie. He, therefore, filed a memo for withdrawal of the said O.P.No.82/2004. Before that petition was ordered, he had filed a separate petition, O.P.No.231/2008 raising a claim for divorce on the ground of desertion as well as cruelty under Sections 13(1)(ia) and (ib) of the Hindu Marriage Act. The learned Judge of the Family Court granted the said request made before it by the respondent-husband by filing a memo (and not a separate petition). The learned Judge of the Family Court by the impugned order granted permission for withdrawal. Accordingly, O.P.No.231/2008 is being proceeded with. A preliminary objection of maintainability was raised. That objection was turned down by the impugned order. It is in these circumstances that the petitioner has come before this Court. 4. We must first of all remind ourselves that we are called WPC.23297/2009 -3- upon to invoke and exercise the extra ordinary constitutional jurisdiction under Article 227 of the Constitution of India. Such jurisdiction, it is trite, is to be invoked only in a case where the court feels that injustice or miscarriage of justice would otherwise result. That jurisdiction is not to be invoked to correct any and every error that may have been committed by the subordinate courts. This Court must be satisfied that failure of justice or miscarriage of justice results, to justify invocation of such extra ordinary constitutional jurisdiction. 5. The court below certainly has jurisdiction to permit withdrawal of proceedings. In the instant case, the declaration of nullity under Section 11 of the Hindu Marriage Act was the real prayer made in O.P.No.82/2004. The respondent-husband realised that the said claim is not maintainable. Alternatively, he had claimed divorce on the ground of cruelty under Section 13(1) (ia) of the Act. Subsequently, he had filed petition for amendment of O.P.No.82/2004 to incorporate the claim for divorce on the ground of desertion under Section 13(1)(ib) of the Act. WPC.23297/2009 -4- 6. At least, in so far as the claim for divorce on the ground of desertion is concerned, O.P.No.82/2004 is not maintainable as the period of two years had not elapsed from the date of the marriage. That plea is available only if there has been desertion for a period of two years. The claim for divorce on the ground of desertion under Section 13(1)(ib) of the Act thus is not maintainable in O.P.No.82/2004. It was in these circumstances that the learned Judge of the Family Court granted the requisite permission and permitted withdrawal of earlier O.P.No.82/2004. Viewed from any angle, failure of miscarriage of justice is not a vice that we can perceive in the course adopted by the Family Court. According to us, the Family Court has committed no error warranting interference to justify invocation the extra ordinary constitutional jurisdiction under Article 227 of the Constitution of India. All contentions on merits, which the petitioner can raise in the earlier proceedings, can certainly be raised in the present proceedings in O.P.No.231/2008. Even assuming that the alternative prayer for divorce on the ground of cruelty could have been claimed in O.P.No.82/2004, we must alertly note that the WPC.23297/2009 -5- course adopted by the Family Court in permitting withdrawal of O.P.No.82/2004 to facilitate lodging of a fresh composite claim for divorce on the twin grounds of desertion and cruelty does cater eminently to the interests of justice. The Family Court could of course have rigidly insisted that the claim for divorce on the ground of cruelty must be decided in O.P.No.82/2004 and the claim for divorce on the ground of desertion could be staked in a later petition. That may not have been reasonable. That would not have been just and fair to both sides. That would have duplicated the work of the court. Failure or miscarriage of justice is not a vice that we can perceive, discover or invent in the impugned order. We are not, in these circumstances, satisfied that this writ petition deserves to be allowed. Accordingly, this writ petition is dismissed. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks. WPC.23297/2009 -6-