IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02-12-2005 CORAM : THE HONOURABLE MR. JUSTICE A. KULASEKARAN C.R.P. (PD) No. 712 of 2004 and C.M.P. No. 7031 of 2004 V.C.M.P. No. 14011 of 2005 -o- A. Sreedevi .. Petitioner/Respondent Versus Vicharapu Ramakrishna Gowd .. Respondent/Petitioner. Petition filed under Article 227 of The Constitution of India against the notice issued in HMOP No. 706 of 2004 on the file of Principal Judge, Family Court, Chennai. For Petitioner : Mr. P. Subba Reddy For Respondent : Mr. B.B. Venkatesan ORDER The respondent in HMOP No. 706 of 2004 on the file of Principal Judge, Family Court, Chennai has filed this revision under Article 227 of The Constitution of India. The HMOP No. 706 of 2004 was filed under Section 9 of the Hindu Marriage Act by the respondent herein for restitution of conjugal rights and for other reliefs. 2. The case of the respondent herein is that he married the revision petitioner on 15-03-1992 according to Hindu rites and customs in the presence of relatives and elders and the marriage function was held at the residence of the revision petitioner herein at Madras; that after the marriage, they lived together at Madras for three days; that on 18- 03-1992, the respondent went to Addankivaripalam to attend his personal work, later, he came back to Madras on 19-03-1992; that the petitioner herein refused to live with him without any reasons; that subsequently, both of them went to Addankivaripalam and after two days the revision petitioner came back to Madras; that the respondent waited for the petitioner, but she did not turn up, hence, he issued a notice on 08-08- 1992 and the same was also received, but no reply was sent by her; that the respondent has filed similar Petitions under Section 9 of the Hindu Marriage Act, which was dismissed as withdrawn on 22-12-1994 as the dispute was settled mutually; that the petitioner and the respondent lived together as wife and husband continuously from 22-12-1994 to 17-01- 2003; that on 18-01-2003, the respondent came to his native place where he met with an accident and stayed back and despite his notice dated 12- https://hcservices.ecourts.gov.in/hcservices/ 12-2003, she has not joined him, hence, he filed the present HMOP. 3. The trial court issued notice to the revision petitioner herein and she filed this revision petition praying to reject the above said HMOP. 4. The case of the revision petitioner is that she is an actress in Hindi movies, having lot of fans throughout India and they used to write letters to her; that the previous records shows that the respondent herein has filed similar case against Mrs. Priyanka Gandhi Gothra, daughter of Mrs. Sonia Gandhi and Mrs. Jayapradha, a film actress-cum- politician with an intention to gain cheap publicity in print and visual media; that after filing the said HMOP, the media has given wide publicity to him; that the averments relating to the alleged marriage, venue and the subsequent events were all false and imaginary and not on factual basis; that the petitioner was not aware of the respondent at all; that the trial court was used as a tool by the respondent herein for gaining cheap publicity; that the trial court, without application of mind issued notice to the revision petitioner to appear; that the trial court failed to even look into the documents filed by the respondent and mechanically issued notice to her; that the documents filed along with the HMOP are crystal clear that they are not genuine, cooked up for filing the present case; that in any event, the petition under Section 9 of the Hindu Marriage Act is unsustainable in Law. 5. This Court, in CMP No. 7031 of 2004 in CRP No. 712 of 2004 granted interim stay on 23-06-2004. The respondent herein has filed VCMP No. 14011 of 2005 on 22-08-2005 reiterating the allegations, admitting the cases filed by him against the other two ladies, whose names were mentioned supra. It is further alleged by the respondent that one of such lady's family members offered Rs.50 lakhs to him but he refused to receive; that the said lady, though willing to join him, she was prevented, with the result, she attempted suicide; that the other lady offered Rs.25 lakhs to withdraw the case and also offered a State level post in the party and the same was also refused by him; that he further admitted that the case filed by the respondent against one of the ladies was dismissed by the Court and in respect of the case filed by him against another lady, he was punished by the Delhi Court; that this Court cannot interfere in the proceedings of the trial court under Article 227 of the Constitution of India and prayed for vacating the interim order by dismissing the revision. 6. The respondent has also made several allegations against the husband of the revision petitioner as well as the counsel appearing for her before this Court. The husband of the petitioner filed an affidavit denying the averments made by the respondent. Similarly, the counsel for the revision petitioner has also filed an affidavit denying the averments made against him by the respondent. 7. This Court posted the case for hearing on 25-11-2005 and on that day, there was no representation for the respondent, hence, the matter is posted today for orders. 8. Today, when the matter is taken up for hearing, the learned https://hcservices.ecourts.gov.in/hcservices/ counsel appearing for the respondent has made an endorsement in the bundle reporting 'no instructions'. 9. Mr. Subba Reddy, learned counsel appearing for the revision petitioner submits that the respondent herein is in the habit of filing false cases against popular lady personalities; that it is evident that he filed more or less similar cases against them in which one case was dismissed and the case against another person is concerned, admittedly the Delhi Court dismissed it and punished the respondent herein; that the respondent has filed only cooked up xerox copy of the documents along with the HMOP; that the said documents, on its face seen that they were cooked up for the purpose of filing the vexatious HMOP knowing that the petitioner is a popular cine artist in India and such petition attract both visual and print media; that the petitioner has achieved the said object by making the Courts as a tool, which amounts to abuse of process of Court; that when this revision is taken up, the respondent deliberately failed to give instructions to his counsel; that if this type of vexatious case is allowed to be entertained, it would send wrong signal to the other persons, who are in the habit of gaining cheap popularity, knowing fully well that it will affect the reputation of others substantially and prayed for allowing this revision by rejecting the HMOP No. 712 of 2004 before the court below with exemplary costs and also prayed this Court to proceed against the respondent for contempt of Courts. 10. In support of the above contentions, the learned counsel for the petitioner relied on the below mentioned decisions of the Honourable Supreme Court;- i) (Sube Singh vs. State of Haryana and others) (2002) 10 Supreme Court Cases 121 Wherein it is held in Para Nos. 6, 7 and 8 thus:- "6. In the course of the hearing, our attention was drawn to the additional affidavit of O.P. Singh, IPS, Superintendent of Police, Jind, Haryana, filed pursuant to the order of this Court dated 17-7-2001. The affidavit is dated 11-8-2001 and is verified on the basis that the averments made in paras 1 to 9 of the preliminary submissions and paras 1 to 12 thereof were true and correct to the deponent’s knowledge, based on information derived from the official record, which he believed to be correct. The verification clause adds, “Nothing has been concealed or stated incorrect therein.” In paragraph 12 of the affidavit, the deponent has stated: “The petitioner, instead of using his moral authority over his son to restrain him and discharging the duty of a responsible citizen to help the law-enforcing agencies, is misusing the process of law to facilitate his son’s antisocial, parasitic bad criminal lifestyle. He is, apparently, an overground, sleeping partner of his son’s gang, extending all possible help and https://hcservices.ecourts.gov.in/hcservices/ support to him in his campaign to kill and loot the innocent civilians and now the police if they try to intervene, the son doing it with bullets and father with false allegations and litigations.” 7. We asked learned counsel for the respondents to tell us on what basis the deponent had averred that the petitioner was “an overground, sleeping partner of his son’s gang, extending all possible help and support to him ...”. We did so for the reason that had we been so satisfied, we would have considered closing this matter. Learned counsel for the respondents fairly stated that there was no factual basis for the averments quoted above. 8. It is, prima facie, clear that a false statement has been made on oath by the deponent and that it was intended to subvert the process of the law. We, therefore, issue to the deponent, O.P. Singh, suo motu, notice to show cause why action should not be taken against him and he should not be punished for contempt of court. The notice shall be returnable after four weeks." ii) (U.P. Resi Emp Co-op. House B Society and others v. New OkhlaIndustrial Development Authority and others) 2003 AIR SCW 3304 wherein it was held in Para 10 and 11 thus:- "10. It, therefore, prima facie appears that Mr S.C. Pabreja has filed a false affidavit before this Court with a view to mislead this Court and with a view to see that this Court does not pass any order, adverse to what NOIDA authority is contending. "11. It has been held in the case of Hiralal Chawla v. State of U.P.1 that filing of false affidavit also amounts to contempt of this Court. The Registry is, therefore, directed to issue show-cause notice to Shri S.C. Pabreja, returnable before us within four weeks from today, as to why action in contempt should not be taken against him for having filed a false affidavit in this Court." 11. The respondent herein has filed his written argument dated 22- 09-2005 stating that this revision is not maintainable; that the disputed relationship of husband and wife be proved only after let in evidence and marking documents before the trial court and prayed for dismissal of the revision petition. As mentioned above, the counsel for the respondent has made an endorsement reporting no instructions and he has not advanced any argument but prayed this Court to consider the written statement filed already. https://hcservices.ecourts.gov.in/hcservices/ 12. The Family Courts Act, 1984 (Act 66 of 1984) was enacted by the Parliament, which came into force by notification in the official gazzette on different dates for different States. In so far as Tamil Nadu is concerned, it came into force with effect from 02-10-1986. The statements of objects and reasons of the said Act is that is as follows:- 'Several organisations of women, other organisations and individuals have urged, from time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th Report (1974) had also stressed that in dealing with disputes concerning the family the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure, 1908 was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the Courts in adopting the conciliatory procedure and the Courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt in the public interest, to establish Family Courts for speedy settlement of family disputes." 13. Family Courts have been established with the object of achieving socially desirable results and adherence to rigid rules of procedures and evidence should be eliminated. 14. Section 10 of Family Courts Act says as follows:- "10. Procedure generally.- (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (V of 1908) and of any other law for the time being in force shall apply to the suits and proceeding (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. (2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court. (3) Nothing in sub-section (1) or sub-section https://hcservices.ecourts.gov.in/hcservices/ (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other." 15. The above said provisions of Family Court says that subject to the provisions of the Family Court Act, the provisions of Civil Procedure Code shall apply. 16. Arguments were advanced by the learned counsel for the petitioner that the petitioner is not even aware of the respondent and the relationship as wife and husband was totally denied; that the vexatious and false HMOP filed by the respondent herein is liable to be rejected in limini under Order VII Rule 11 CPC on the ground of non- disclosure of cause of action. 17. If on a meaningful, not formal reading of plaint or petition, it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, the trial court should exercise its power under Order VII Rule 11 CPC. The trial court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shut down at the earliest stage. In the decision reported in (T. Arivandandam vs. T.V. Satyapal and another) AIR 1977 Supreme Court 2421, it was held in para-5 thus:- "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif’s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: “It is dangerous to be too good.” It is seen from the above said judgment that it is the duty of the https://hcservices.ecourts.gov.in/hcservices/ trial court to read the plaint, not formally, but on a meaningful way and on such reading it is manifestly vexatious and meritless in the sense of not disclosing a fair right to sue, it should exercise its power exercisable under Order VII Rule 11 CPC taking care to see that the grounds mentioned therein are fulfilled and if clear drafting has created the illusion of cause of action, nip it in the bud. The Penal Code is also resourceful enough to meet such men, and must be triggered against them. 18. Now, I proceed to decide as to whether the HMOP No.706 of 2004 filed by the respondent herein before the Family Court is liable to be rejected as prayed for by the petitioner. 19. Before the trial court, the respondent has enclosed a wedding invitation dated 27-01-1992 in which the respondent is figured as bridegroom. Under his name, it is stated that he is the 'former husband of Jayapradha, Cine Artist', however, the said words were struck out in a manner the same is visible and readable. The date and venue of the said marriage were mentioned as 'on Sunday the 15th March 1992 at 10.23 a.m. at Bride's residence at H.No.1, Bishop Wallers Avenue South, CIT Colony, Madras-4'. It is necessary to mention that the name of the press where the invitation was printed is not mentioned. The said invitation itself is shabby, sub-standard, strange, unusual and the way in which the respondent was projected as former husband of Jayapradha disclose his ulterior motive. The said invitation dated 27-01-1992 is not trustworthy at all, hence, this Court is of the view that the alleged marriage between the respondent and the petitioner is not at all proved. 20. The averments in the HMOP No. 122 of 1994, which was filed by the respondent before the Sub-court, Tenali, Andhra Pradesh and the averments made in the present HMOP are also different. Though it is stated that a notice dated 18-06-1992 was issued by the respondent prior to filing of HMOP No. 122 of 1994 before the Sub-court, Tenali and the same is enclosed in the present HMOP, only the alleged office copy of the said notice has been enclosed, but the acknowledgment was not filed to prove the service on the petitioner. The reason for withdrawing similar relief sought for before the Sub-court, Tenali also not validly explained by the respondent. If, after dismissal of the HMOP No. 122 of 1994 as not pressed and thereafter parties allegedly lived together, the HMOP No. 706 of 2004 ought to have been supported by documents, but no document is furnished by the respondent before the trial court. It is the duty of the trial court that such averment is made that after withdrawing the earlier HMOP they lived together, it should have been cautious and insisted for production of the documents, but no such efforts were taken by it. When the defect is apparent on the face of the record of the plaint, the duty of the Court under Order VII Rule 7 CPC is to examine the plaint before issuing summons. 21. This matter is not only important to the parties in the case, which is of relevance for the society and such matter calls for careful and in-depth consideration keeping in mind the sensitive nature of the dispute raised. The family Court is not expected to receive the cases presented, number them and issue summons mechanically. Section 7 of the Family Courts Act confer jurisdiction to the Family Courts, subject to https://hcservices.ecourts.gov.in/hcservices/ other provisions of this Act, it also have jurisdiction exercisable by a Magistrate of the first class under Chapter 9 of Criminal Procedure Code and such other jurisdiction as may be conferred on it by other enactment. However, it is the duty of the Court to examine the petition before issuing summons. Any discovery of patent defect should not, as a Rule, be deferred, until summon has gone out and the written statement has come in. 22. The argument of the respondent is that the family Court issued summons to the petitioner, hence, if at all, the petitioner has to place the alleged facts before it and it is for the said Court to decide it finally. When petition suffers from vital defect, the mere issuance of summons by the trial court, it is not required that trial should proceed even without any triable issue is shown to arise, permitting the continuance of such suit is tantamount to licensing frivolous and vexatious litigation, that cannot be done. In this context, it is useful to refer the decision reported in (Patasibai and others vs. Ratanlal) (1990) 2 Supreme Court Cases 42, wherein, in Para Nos. 13 and 14, it was held thus:- "13. On the admitted facts appearing from the record itself, learned counsel for the respondent, was unable to show that all or any of these averments in the plaint disclose a cause of action giving rise to a triable issue. In fact, Shri Salve was unable to dispute the inevitable consequence that the plaint was liable to be rejected under Order VII Rule 11, CPC on these averments. All that Shri Salve contended was that the court did not in fact reject the plaint under Order VII Rule 11, CPC and summons having been issued, the trial must proceed. In our opinion, it makes no difference that the trial court failed to perform its duty and proceeded to issue summons without carefully reading the plaint and the High Court also overlooked this fatal defect. Since the plaint suffers from this fatal defect, the mere issuance of summons by the trial court does not require that the trial should proceed even when no triable issue is shown to arise. Permitting the continuance of such a suit is tantamount to licensing frivolous and vexatious litigation. This cannot be done. 14. It being beyond dispute that the plaint averments do not disclose a cause of action, the plaint is liable to be rejected under Order VII Rule 11, CPC without going into the applicability of Order XXIII Rule 3-A, CPC to the present suit. Having reached this conclusion, it is unnecessary to adopt the technical course of directing the trial court to make the consequential order of rejecting the plaint and, instead, we adopt the practical course of making that order in this proceeding itself to avoid any needless delay in conclusion of this futile https://hcservices.ecourts.gov.in/hcservices/ litigation." In the above said Judgment of the Honourable Supreme Court, it was held that it is not proper that summons having been issued, the trial court must proceed since it makes no difference that the trial court failed to perform its duty and proceeded to issue summons without carefully reading the plaint, which amounts to a fatal defect. In the decision reported in (Saleem Bhai and others vs. State of Maharashtra and others) AIR 2003 Supreme Court 759, wherein in Para Nos. 9 and 10, it was held thus:- "9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit — before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a