# Shri Om Tiwari v. Smt. Shikha Tiwari - **Citation:** (2021) 6 ILRA 138 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-07-18 - **Case number:** First Appeal No. 525 of 2019 - **Bench:** Manoj Misra, Virendra Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-om-tiwari-v-smt-shikha-tiwari-45142 - **Pages:** 3 ## Headnote A. Civil Law - Hindu Marriage Act, 1955 - Sections 13 & 25 - Family Courts Act, 1984 - Section 10 - Divorce petition - Permanent Alimony, claimed - No pleading in written statement on the issue of alimony - However, the Court framed an addition issue on it - Validity - Application to strike of additional issue, filed - Held, mere framing of an issue does not cause prejudice to any party, rather it 6 All. Shri Om Tiwari Vs. Smt. Shikha Tiwari 139 enables a party to appropriately address the issue and to lead evidence so that the court could arrive at the truth - Framing of such an issue by a Family Court is within its power conferred upon it by Section 10(3) of the Family Courts Act. (Para 11) B. Practice and procedure - Family Courts Act, 1984 - Section 10 - Divorce petition - Determination of procedure - Power of Family Court - Sub-section (3) of Section 10 of the Act enables a Family Court to determine 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. (Para 8) First Appeal dismissed. (E-1) ## Text 138 INDIAN LAW REPORTS ALLAHABAD SERIES system is not exploited by those who use the forum of the law to defeat or delay justice. Hon'ble Supreme Court commended all courts to deal with frivolous filings, firmly and impose exemplary costs. 15. The principles laid down in the case of Dnyandeo Sabaji Naik (supra), have been reiterated by Hon'ble Supreme Court in the case of Haryana State Co-op. L&C Federation Ltd. vs. Unique Co-op. L&C Co-op. Society Ltd., (2018) 14 SCC 248 (Paras 16 & 17) while dismissing the appeal of the Haryana State Coop. L&C Federation Ltd. (supra) with exemplary cost of Rs.5 lacs. 16. In the case of Punjab State Power Corporation Ltd. (supra), Hon'ble Supreme Court emphasised that imposition of exemplary costs should be in real terms and not merely symbolic. 17. Facts of the case and the findings recorded in paras 5 to 13 above leave no manner of doubt that the process of Court has been grossly abused by the appellants. This Court must view with dis-favour the attempt of litigants to abuse judicial process and must deal with them firmly otherwise sanctity of judicial process shall be seriously eroded. In such cases consequences must follow so that unscrupulous to the detriment of the legitimate may not misuse the process of dispensing justice. The tendency of repeated attempt to revive a stale issue, needs to be curbed by Courts firmly by imposing real time costs. It is necessary to do so, so that on one hand access to Courts may be available to people with genuine grievances and on the other hand frivolous and groundless filing of cases constituting serious menace to the administration of justice and consuming precious time of Court and clogging the infrastructure, may be discouraged and productive resources may be deployed in handling genuine cases. 18. For all the reasons aforestated, the appeal is dismissed with cost of Rs.1,00,000/-. 19. The cost shall be deposited by the appellants with the court below within two months and on deposit the respondent Nos.1, 2 and 3 shall be entitled to withdraw it in equal proportion. ---------- (2021)06ILR A138 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 18.07.2019 BEFORE THE HON'BLE MANOJ MISRA, J. THE HON'BLE VIRENDRA KUMAR SRIVASTAVA, J. First Appeal No. 525 of 2019 Shri Om Tiwari ...Appellant Versus Smt. Shikha Tiwari ...Respondent Counsel for the Appellant: Sri B.D. Shukla Counsel for the Respondent: -- A. Civil Law - Hindu Marriage Act, 1955 - Sections 13 & 25 - Family Courts Act, 1984 - Section 10 - Divorce petition - Permanent Alimony, claimed - No pleading in written statement on the issue of alimony - However, the Court framed an addition issue on it - Validity - Application to strike of additional issue, filed - Held, mere framing of an issue does not cause prejudice to any party, rather it 6 All. Shri Om Tiwari Vs. Smt. Shikha Tiwari 139 enables a party to appropriately address the issue and to lead evidence so that the court could arrive at the truth - Framing of such an issue by a Family Court is within its power conferred upon it by Section 10(3) of the Family Courts Act. (Para 11) B. Practice and procedure - Family Courts Act, 1984 - Section 10 - Divorce petition - Determination of procedure - Power of Family Court - Sub-section (3) of Section 10 of the Act enables a Family Court to determine 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. (Para 8) First Appeal dismissed. (E-1) (Delivered by Hon'ble Manoj Misra, J. & Hon'ble Virendra Kumar Srivastava, J.) 1. We have heard Sri B.D. Shukla for the appellant and have perused the record. 2. The instant appeal has been filed under Section 19 of the Family Courts Act, 1984 challenging the orders dated 02.05.2019 and 02.04.2019 passed by the Additional Principal Judge, Family Court, Court No.2, Kanpur Nagar in Matrimonial Case No.1026 of 2008 filed under Section 13 of the Hindu Marriage Act, 1955. 3. By order dated 02.04.2019, on application of defendant-respondent, an additional issue was framed, that is, "whether the defendant is entitled to permanent alimony". 4. By order dated 02.05.2019, the Application 73-Ga filed by the plaintiffappellant to strike off the aforesaid issue was rejected. 5. Assailing the orders dated 02.04.2019 and 02.05.2019, the learned counsel for the appellant has urged that the issue relating to entitlement for permanent alimony does not arise from the pleadings of the parties and is to be considered at the time of final decision of the case and, therefore, the same should not be made an issue for adjudication at this stage. He has invited attention of the Court to sub-section (1) of Section 10 of the Family Courts Act, 1894 which provides that subject to the other provisions of the Act and the rules, the provisions of the Code of Civil Procedure, 1908 and of any other law for the time being in force shall apply to the suits and proceedings [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. 6. It has been urged that since the issues are to be determined on the basis of the pleadings of the parties, in absence of any pleading in the written statement with regard to permanent alimony, framing additional issue in that regard is not legally justified and, therefore, the court below was not justified in rejecting the application filed by the appellant to strike off the additional issue. 7. We have perused the provisions of the Family Courts Act, 1984 (for short the Act). Sub-section (3) of Section 10 of the Act is of relevance. Sub-section (3) of Section 10 of the Act provides as follows:- "(3) Nothing in sub-section (1) or subsection (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." 140 INDIAN LAW REPORTS ALLAHABAD SERIES 8. As noticed above, sub-section (3) of Section 10 of the Act enables a Family Court to determine 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. This power is notwithstanding the provisions contained in sub-sections (1) and (2) of Section 10. 9. As per Section 25 of the Hindu Marriage Act, 1955, the prayer for permanent alimony is to be accorded consideration by the Court at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be. There is nothing in Section 25 of the Hindu Marriage Act, 1955 which may suggest that an application for permanent alimony cannot be filed during the suit proceeding. Though, once filed, it is to be addressed at the time of passing the decree or at any time subsequent thereto. Therefore, if any such application is filed, framing an issue in that regard is not prohibited. Though, such issue would have to be addressed at the time of final decision of the petition. Thus, if any such issue has been framed in a divorce petition, it is expected that the Family Court would decide the same at the time of deciding the petition or any time thereafter. 10. In the instant case, the defendantrespondent had filed an application under Section 25 of the Hindu Marriage Act for permanent alimony. Under the circumstances, on her application, that additional issue was framed. 11. As mere framing of an issue does not cause prejudice to any party, rather it enables a party to appropriately address the issue and to lead evidence so that the court could arrive at the truth and appropriately settle the matter, we are of the view that framing such an issue by a Family Court is within its power conferred upon it by subsection (3) of Section 10 of the Family Courts Act. 12. For the reasons recorded above, we do not find any merit in the submission made by learned counsel for the appellant. The appeal is dismissed. ---------- (2021)06ILR A140 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 10.03.2021 BEFORE THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. THE HON'BLE AJIT SINGH, J. First Appeal 815 of 2017 Deepak ...Appellant Versus Smt. Radha Rani ...Respondent Counsel for the Appellant: Sri Anurag Sharma Counsel for the Respondents: --- A. Civil Law - Hindu Marriage Act, 1955 - Section 9 - Matrimonial dispute - Conjugal right, claimed - Cruelty - Acquittal in criminal litigation, it's effect - Irretrievable break down - Mediation between the parties failed - Held, If criminal litigations are filed and if they culminate into acquittal then it amounts to cruelty - Wedlock come to irretrievable breakdown as the parties are leaving separately since 2015. (Para 18 and 19) First Appeal allowed. (E-1)