# Richa Mumgaie v. Harendra Prasad

- **Citation:** (2024) 4 ILRA 970
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-20
- **Case number:** First Appeal No. 245 of 2024
- **Bench:** Vivek Kumar Birla, Donadi Ramesh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/richa-mumgaie-v-harendra-prasad-51877
- **Pages:** 7

## Headnote

Civil Law - Hindu Marriage Act, 1955 -
Section 23 (1) (b) - Civil Procedure Code,
1908 - Order VII Rule 11(d) - Impugned
order
dismisses
appellant-wife's
application under O.VII R.11(d) CPC read
with Section 23(1)(b) of Hindu Marriage
Act, holding that as divorce petition filed
on grounds of cruelty and adultery is at
stage of DW-1's cross-examination and
matter is expedited, such application
can't be entertained - Held, a plain
reading of plaint shows a cause of action
is made out - Paragraphs 9 -11 and
subsequent averments detail the wife's
repeated
misconduct
after
initial
condonation, including specific instances
of adultery - Single condonation of any
act does not reject the plaint where such
acts are alleged to have been repeated -
Condonation
u/s
23(1)(b)
of
Hindu
Marriage Act is conditional, presuming
forgiven acts will not repeated - Where
plaint specifically alleges repetition of
such
acts
after
initial
condonation,
Section 23(1)(b) cannot bar claim, and
plaint cannot be rejected under O.VII
R.11(d)
CPC
on
ground
of
prior
condonation - Court used words "coupled
with" shows application under O.VII R.11
CPC read with Section 23(1)(b) Hindu
Marriage Act was not rejected for that
sole
reason,
and
contention
is
misconceived - Appeal is devoid of
merits and accordingly dismissed. (Para
3, 9, 13, 16)

Appeal dismissed. (E-13)

List of Cases cited:
4 All. Richa Mumgaie Vs. Harendra Prasad
971

## Text

970 INDIAN LAW REPORTS ALLAHABAD SERIES
to opposite party nos. 2 and 3 can be
determined as 1/3rd of Rs.15,000/- i.e.
Rs.5,000/-. In the impugned judgement and
order, considering all the facts and
circumstances and evidence on record, the
trial court has also granted Rs.3,000/- to
opposite party no. 2 and Rs.2,000/- to
opposite party no. 3.

32. From the above discussion, I am
of the view that the trial court has rightly
concluded that opposite party no. 2 is
legally wedded wife of revisionist and
opposite party no. 3 is the daughter born
from their wedlock. The trial court has
rightly concluded that opposite party no. 2
has no earning to maintain herself and her
minor daughter. The revisionist is capable
of earning sufficient income to maintain his
wife and minor daughter, still he is
neglecting in maintaining them. The trial
court has provided just and reasonable
monthly
maintenance
allowance
for
opposite party nos. 2 and 3 i.e. wife and
daughter of the revisionist.

33. There is no merit in the criminal
revision and the same is liable to be
dismissed.

34.

The
criminal
revision
is
accordingly, dismissed.

35. Let a copy of this order be sent to
the concerned trial court for necessary
action.
----------
(2024) 4 ILRA 970
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.03.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DONADI RAMESH, J.
First Appeal No. 245 of 2024

Richa Mumgaie ...Appellant
Versus
Harendra Prasad ...Respondents

Counsel for the Appellant:
Sri Ritesh Srivastava, Ms. Shweta Singh, Sri
Abhishek Yadav

Counsel for the Respondents:

Civil Law - Hindu Marriage Act, 1955 -
Section 23 (1) (b) - Civil Procedure Code,
1908 - Order VII Rule 11(d) - Impugned
order
dismisses
appellant-wife's
application under O.VII R.11(d) CPC read
with Section 23(1)(b) of Hindu Marriage
Act, holding that as divorce petition filed
on grounds of cruelty and adultery is at
stage of DW-1's cross-examination and
matter is expedited, such application
can't be entertained - Held, a plain
reading of plaint shows a cause of action
is made out - Paragraphs 9 -11 and
subsequent averments detail the wife's
repeated
misconduct
after
initial
condonation, including specific instances
of adultery - Single condonation of any
act does not reject the plaint where such
acts are alleged to have been repeated -
Condonation
u/s
23(1)(b)
of
Hindu
Marriage Act is conditional, presuming
forgiven acts will not repeated - Where
plaint specifically alleges repetition of
such
acts
after
initial
condonation,
Section 23(1)(b) cannot bar claim, and
plaint cannot be rejected under O.VII
R.11(d)
CPC
on
ground
of
prior
condonation - Court used words "coupled
with" shows application under O.VII R.11
CPC read with Section 23(1)(b) Hindu
Marriage Act was not rejected for that
sole
reason,
and
contention
is
misconceived - Appeal is devoid of
merits and accordingly dismissed. (Para
3, 9, 13, 16)

Appeal dismissed. (E-13)

List of Cases cited:
4 All. Richa Mumgaie Vs. Harendra Prasad
971
1. Saleem Bhai & ors. Vs St. of Mah. & ors., Civil
Appeal No. 8518 of 2002

2. Dr. N.G. Dastane Vs. Mrs. S. Dastane, Civil
Appeal No. 2224 of 1970

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Donadi Ramesh, J. )

1. Heard Sri Ritesh Srivastava,
learned counsel for the appellant.

2. Present appeal has been filed
challenging the order judgment and order
dated 16.02.2024 passed by Principal
Judge, Family Court, Ghaziabad in Case
No. 596 of 2020, under Section 13 (1) (i) of
the Hindu Marriage Act.

3. By the impugned order, the
application moved by the appellant-wife
(hereinafter referred to as 'wife') under
Order VII Rule 11(d) CPC read with
Section 23 (1) (b) of the Hindu Marriage
Act (hereinafter referred to as the Act) on
the ground that after discussing the case
law on the interpretation of the word
'condonation of the act' as given under
Section 23 of the Act. The court below
rejected the application and held that the
divorce petition has been moved on the
ground of cruelty and adultery with the
averments made in the petition and the
matter is at the stage of cross-examination
of DW-1 coupled with the fact that the
matter has been expedited by this Court, no
such application can be entertained at this
stage.

4. By drawing attention to paragraph
9 of the divorce petition, submission of
learned counsel for the appellant is that the
act of wife was condonded by the husband
and therefore, in view of the provisions of
Order VII Rule 11(d) CPC read with
Section 23 (1) (b) of the Act, as the act has
been
condoned
in
the
plaint
itself,
therefore, the plaint ought to have been
rejected. He further submits that the sole
reason for rejecting such application is that
the matter has been expedited by this
Court, therefore, he refused to entertain the
application.

5. We have considered the submission
and perused the record.

6. For ready reference, the provisions
of Order VII Rule 11 and Section 23 of the
Hindu Marriage Act are quoted as under:

Order VII Rule 11 CPC

"11. Rejection of plaint.- The
plaint shall be rejected in the following
cases:-

(a) where it does not disclose a
cause of action;

(b) where the relief claimed is
undervalued, and the plaintiff, on being
required by the court to correct the
valuation within a time to be fixed by the
court, fails to do so;

(c) where the relief claimed is
properly valued, but the plaint is written
upon paper insufficiently stamped, and
the plaintiff, on being required by the
court to supply the requisite stamp paper
within a time to be fixed by the Court,
fails to do so;

(d) where the suit appears from
the statement in the plaint to be barred by
any law;

(e) where it is not filed in
duplicate;
972 INDIAN LAW REPORTS ALLAHABAD SERIES

(f) where the plaintiff fails comply
with the provision of Rule 9.

Provided that the time fixed by
the court for the correction of the valuation
or supplying of the requisite stamp papers
shall not be extended unless the court, for
reasons to be recorded, is satisfied that the
plaintiff was prevented by any cause of an
exceptional nature from correcting the
valuation or supplying the requisite stamp
papers, as the case may be within the time
fixed by the court and that refusal to extend
such time would cause grave injustice to
the plaintiff.

Section
23
of
the
Hindu
Marriage Act

23. Decree in proceedings.-(1)
In any proceeding under this Act, whether
defended or not, if the court is satisfied
that-

(a) any of the grounds for
granting relief exists and the petitioner
[except in cases where the relief is sought by
him on the ground specified in sub-clause
(a), sub-clause (b) or sub-clause (c) of
clause (ii) of section 5] is not in any way
taking advantage of his or her own wrong or
disability for the purpose of such relief, and

(b) where the ground of the
petition is the ground specified in clause (i)
of sub-section (1) of section 13, the
petitioner has not in any manner been
accessory to or connived at or condoned
the act or acts complained of, or where the
ground of the petition is cruelty the
petitioner has not in any manner condoned
the cruelty, and

[(bb) when a divorce is sought on
the ground of mutual consent, such consent
has not been obtained by force, fraud or
undue influence, and]

(c) [the petition (not being a
petition presented under section 11)] is not
presented or prosecuted in collusion with
the respondent, and

(d) there has not been any
unnecessary
or
improper
delay
in
instituting the proceeding, and

(e) there is no other legal ground
why relief should not be granted, then, and
in such a case, but not otherwise, the court
shall decree such relief accordingly."

(Emphasis supplied)

7. For the purpose of consideration of
the application on merits, paragraph 9 of
the divorce petition is also quoted as under:

(ix) That after the Petitioner
came across all vile and filthy chats
exchanged between Respondent no. 1 and
Respondent no. 2 and call logs of
Respondent no.1 for the calls made on
mobile number 9873877866 which belongs
to Respondent no. 2, Respondent no. 1
confessed the same in front of Petitioner
and
his
family
members,
that
the
conversation between the family members
of the parties to the petition was recorded
by the Petitioner on his mobile phone
wherein Respondent no. 1 herself accepted
her intimate relationship with Respondent
no. 2, family of Respondent no. 1 further
requested Petitioner to give a chance to
Respondent no. 1 and forced the Petitioner
to live with Respondent no.1 in the same
house, for the sake of saving the married
life and future of his son, Petitioner
accepted the terms of family members of
Respondent no. 1. (Copy of mobile
4 All. Richa Mumgaie Vs. Harendra Prasad
973
recording
is
annexed
herewith
as
Annexure-D (colly).

(Emphasis supplied)

8. However, this Court is of the
opinion that this paragraph cannot be read
in isolation for the purpose of rejection of
the plaint and entire contents of the plaint
have to be looked into and therefore,
paragraphs 10 to 17 are also quoted as
under:

(x)
That
after
the
above
mentioned family meeting, the Respondent
no. 1 remained quiet for a couple of days,
but to the surprise of Petitioner and his
family the Respondent no.1 again started
the same old activities, she again continued
her arrogant and egoistic behavior along
with continuous telephonic engagement
and complete negligence towards her child
and responsibilities.

xi) That, infact afterwards, it
became further worse in addition to remain
uncaring towards home and the child, she
used to lock herself in a room for most of
the time and she used to be continuously on
phone. While being in the same room, the
Respondent no. 1 used to cover her body
and face with blanket, and remain busy on
the phone beneath it. Further, Respondent
no. 1 many a times threatened the
Petitioner and his family members that she
is going to file divorce petition along with
multiple false complaints at various police
stations.

xii) That on multiple occasions
Respondent no. 1 clearly expressed her
love to Co-Respondent i.e. Respondent no.
2 in open words through Facebook
messages
and
WhatsApp
messages
(Photocopy of screenshot of intimate chats
between Respondent no. 1 and Respondent
no.2 is already annexed for the kind
perusal of this Hon'ble Court).

xiii) That simultaneously the
Respondent
was
in
touch
and
in
conversation with many other male friends
also. Moreover the Respondent no.1 makes
it obvious that the Respondent no.1 was in
a habit of approaching her targets in
suggestive manner to get into adulterous
relation.

xiv) That the brazenness in action
of the Respondent no. 1 comes to fore on
repeated occasions. The Respondent dared
to take Co-Respondent to hotel room
leaving her son at home and splurged hard
earned money of the Petitioner on her male
friends. That at the time of this obnoxious
act of Respondent no. 1 and Respondent no.
2, family of Petitioner use to take care of
child who was born out of the wedlock.

xv) That further Petitioner got tο
know that the Respondent no.1 was in
physical relationship with other multiple
males and Respondent no.2. i.e. Amit
Kumar having mobile number 9873877866.

xvi) That after confession of
Respondent no.1 neither family members of
Respondent no.1 tried to resolve this
dispute between Petitioner and Respondent
no.1, they never contacted Petitioner or his
family member and only Petitioner or his
elder brother used to contact the family
member of Respondent no. 1. That further
on December 14, 2019 as it was hard for
the Petitioner to live in a harmonious
cohabitation with the Respondent no.1
because of the vile and adulterous act
performed by the Respondent no.1 with
Respondent no. 2, it is pertinent to mention
here that the Petitioner on the request of
Respondent no. 1 dropped her at her
974 INDIAN LAW REPORTS ALLAHABAD SERIES
parental home i.e. House No. A-56, ABlock, East Vinod Nagar, Delhi.

xvii) That from December 2019 to
February 2020, after every proof Petitioner
many times requested Respondent no. 1 and
her family to meet at a common place to
find a solution peacefully for this situation,
and after a delay of more than a month,
finally a meeting was set up for the same on
2nd February 2020 at Akshardham Mandir
where Petitioner requested family of
Respondent no. 1 to bring Viraj (son of
Petitioner) along with them at the time of
meeting,
despite
this
clear
message
conveyed via father i.e. the Petitioner,
Respondent no. 1 clearly refused the said
request to bring the child along with her,
which clearly reflects the irked behavior of
the Respondent no. 1 towards the Petitioner
and his family members, Moreover the
Petitioner along with his family members
went to the meeting point. Where, to utmost
surprise for the Petitioner, family of
Respondent no.1 started quarreling and
blaming Petitioner for every shameful act
of Respondent no.1, and started threatening
the Petitioner to lodge a false case and
complaints against the Petitioner and his
family members. Respondent no. 1 also
threatened the Petitioner that if he ever
tries to get in between her relationship with
Respondent no. 2, she will make sure that
Petitioner will face dire consequences and
if the Petitioner ever tries to get in touch
with Viraj (son of petitioner) she along with
Respondent no. 2 will cause serious harm
to the Petitioner and his family members."

(Emphasis supplied)

9. A bare reading of the aforesaid
paragraphs clearly discloses the fact that a
cause of action in the plaint is made out. As
per paragraph 9, the family of the wife
forced the husband-respondent to live with
her in the same house for the sake of saving
the married life and future of his son the
respondent-husband accepted the terms of
family members of the appellant-wife. In
paragraph 10, it has been clearly alleged
that after remaining quiet for a couple of
days, the appellant-wife again started same
activities. Paragraph 11 starts with the
words "infact afterwards it became further
worse" and other facts are narrated
thereafter. Subsequent paragraphs also
reflects the conduct of the wife subsequent
to the initial condonation of his acts of
alleged adultery. We also find that in
paragraph 7, the details of check-in and
check-out of hotel rooms on the same day,
which were booked by the person with
whom she was having relationship, have
also been mentioned. Therefore, it cannot
be said that no cause of action is disclosed
in the divorce petition. Even otherwise,
single condonation of any act or acts by
itself, would not be sufficient to reject the
plaint
once
there
is
allegation
that
subsequent to condonation of the such acts,
the same were being repeated.

10. Learned counsel for the appellant
has placed reliance on the judgments of the
Apex Court passed in Civil Appeal No.
8518 of 2002 (Saleem Bhai & Ors. Vs.
State of Maharashtra & Ors.) and Civil
Appeal No. 2224 of 1970 (Dr. N.G.
Dastane Vs. Mrs. S. Dastane).

11. We find that such judgments are
of no help to the appellant.

12. In para 8 of Saleem Bhai (supra),
it has been observed that for Order VII
Rule 11 CPC only averment in the paint are
relevant and the plea taken by the
defendant in the written statement are
wholly irrelevant at this stage. Dr. N.G.
4 All. Richa Mumgaie Vs. Harendra Prasad
975
Dastane (supra) is essentially on the issue
of burden of proof in a case of cruelty. The
appeal before Hon'ble Apex Court was
challenging the final judgment of High
Court passed in a second appeal on the
ground that High Court has re-appreciated
the evidence and came to erroneous
approach and Order VII Rule 11 CPC was
not in issue.

13. In our considered opinion even if
there is condonation of an act, or even acts
but subsequently the same are revived or
repeated and there is specific statement
regarding such repetition in other paragraphs
of the plaint, by reading one paragraph in
isolation, ignoring the other paragraphs,
would not be covered by Section 23 (1) (b) of
the Hindu Marriage Act, 1955 to become a
ground for rejection of plaint in Order VII
Rule 11 (d) CPC as there can be no such
condonation of act/acts, if the acts are being
repeated. Even in common understanding,
condonation of any act is conditional
forgiveness that the act would not be
repeated. This is not so in the present case. As
the statement has been made in the plaint to
the effect that such acts are being repeated.

14. It is also pertinent to note that the
divorce petition has been filed not only on
the ground of having voluntary sexual
relationship with others by the wife but also
on the ground of cruelty (Section 13 (1) (i)
of the Act) as well. The other paragraphs of
the plaint, therefore, cannot be ignored. The
prayer clause of the divorce petition is
quoted as under:

"1. Pass a decree of divorce by
dissolving the marriage between the
Petitioner and Respondent no.1, in favour
of the Petitioner under Section 13(1)(i) of
the Hindu Marriage Act, 1955 as amended
up to date;

2.
Pass
an
order
thereby
directing the district forensic authority for
the analysis of phones, Facebook accounts,
messenger app, WhatsApp chats, of the
Respondent no.1 and Respondent no.2;

3.
Pass
an
order
thereby
directing OYO to provide check-in and
check-out records of bookings made by
Respondent no.2 on different occasions as
mentioned above'

4.
Pass
an
order
thereby
directing the Respondent no.1 to handover
the custody of the child to father i.e.
Petitioner;

5. Pass such an order and further
orders as this Hon'ble Court may deem fit
and proper in the interest and furtherance
of Justice."

15. From perusal of the order-sheet, it
appears that the divorce petition is pending
at the stage of cross-examination of DW-1
and the court below has also noted that
there is also a direction for expeditious
disposal issued by this Court is also
operating in the aforesaid case.

16. The court below has used the
words 'coupled with', it is, therefore,
clear that the contention of learned
counsel
for
the
appellant
that
the
application under Order VII Rule 11 CPC
read with Section 23 (1) (b) of the Act
has been rejected for this sole reason, is
patently misconceived.

17. The court below is directed to
proceed expeditiously as already directed
by this Court accordingly. The Registrar
(Compliance) is directed to send a copy of
this order to the court concerned, as
expeditiously as possible.
976 INDIAN LAW REPORTS ALLAHABAD SERIES

18. The appeal is devoid of merits and
is, accordingly, dismissed, however, with
the observations made above.
----------
(2024) 4 ILRA 976
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2023

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

First Appeal Defective No. 366 of 2023

Smt. Monika Yadav ...Appellant
Versus
Aakash Singh & Ors. ...Respondents

Counsel for the Appellant:
Sri Rajesh Yadav

Counsel for the Respondents:

Civil Law - Indian Succession act, 1925 -
Sections 371, 372, 384 & 388(2) -
Challenging rejection of application for
grant
of
Succession
Certificate
-
Jurisdiction of Court - Maintainability of
appeal - As Civil Judge (Senior Division)
which is a inferior court, exercises
powers of District Judge under Part X of
Succession Act, thus, the proviso to
Section 388(2) would be attracted, and
appeal from its order lies to District
Judge, not to the High Court - Hence,
appeal is permitted to be withdrawn
with liberty as prayed. (Para 2, 3, 34,
35)

Appeal disposed of. (E-13)

List of Cases cited:

1. East End Dwellings Co. Ltd. Vs Finsbury
Borough Council, (1951) 2 All ER 587 (HL)

2. St. Aubyn (L.M.) Vs Attorney General (No. 2),
(1951) 2 All ER 473;1952 AC 15 (HL)
3. Hunter Douglas Australia Pty. Vs Perma
Blinds, (1970) 44 Aust LJR 257

4. R. Vs Norfolk County Court, (1891) 60 LJ QB
379: 65 LT 22

5. Ferguson Vs Mcmillan, 1954 SLT 109

6. Mullins Vs Treasurer of Surrey, (1880) LR 5
QBD 170 at p. 173 (DC)

7. Prem Chand Vs Sunil Kumar & ors., 1990
AWC 593 All

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Rajesh Yadav, learned
counsel for the appellant.

2. The present first appeal filed under
Section 384(1) of the Succession act, 1925,
is directed against the judgment and order
dated 05.01.2023 passed by the Civil Judge
(Senior Division), Bhadohi Gyanpur in
Succession Case No. 81 of 2020 (Monika
Yadav Vs. Akash and Others), whereby the
Application (Paper 4Ga) preferred under
Section 372 for obtaining the Succession
Certificate, has been rejected.

3. A question has arisen with regard
to the maintainability of the appeal in view
of the provisions contained in Section
388(2) of the Succession Act, 19251.

4. Counsel for the appellant has
drawn the attention of the Court to Section
384(1) of the Act to contend that an order
passed by the District Judge granting,
refusing or revoking the certificate under
Part X, which relates to Succession
Certificate, would be amenable to an appeal
before the High Court. It is contended that
the Civil Judge (Senior Division) while
passing the order on the application seeking
Succession Certificate, was acting as a