The High Court of Allahabad, while dismissing a petition filed by the petitioner, praying to set aside the impugned order dated 11.05.2018 passed by learned Additional District & Sessions Judge, under section 13 Hindu Marriage Act, held that where the respondent has applied under Section 24 of the Hindu Marriage Act for the grant of litigation expenses, the said respondent cannot be compelled to file a written statement unless an order is passed on the said application.
Brief Facts:
The plaintiff-petitioner filed a divorce petition on 05.05.2015. Notice was issued on 05.05.2015 to the defendant-respondent Babli Devi for filing a written statement in the aforesaid divorce petition by the Principal Judge, Family Court. The defendant-respondent did not file the written statement. On 04.01.2017, the case was directed to proceed ex-parte against the defendant-respondent fixing 16.03.2017. On 16.03.2017, the defendant-respondent filed an application with the prayer that she may be given an opportunity to file a written statement. The application filed by the defendant-respondent was allowed by the court. Thereafter, the defendant filed an application for condonation of delay in filing the written statement. The court below allowed the application filed by the defendant-respondent and accepted the written statement filed by the defendant-respondent. Hence the present petition.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that under Order 8 Rule 1 written statement can be filed within a maximum period of 90 days from the date of service of summons on the defendant. It was further contended by learned counsel for the petitioner that after the amendment in Order 8 Rule 1 of C.P.C., there is no scope for granting any further time for filing a written statement. He argued that the provisions of Order 8 Rule 1 C.P.C. are mandatory in nature and the court below has no option but to reject the written statement if filed beyond the period of 90 days.
Observations of the court:
The court noted that Order 8 Rule 1 provides that the defendant shall file the written statement within 30 days from the date of service of summons. Proviso to Rule 1 of Order 8 C.P.C provides, in case, the defendant fails to file the written statement within said period of 30 days, he shall be allowed to file the same on such other day as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than 90 days from the date of service of summons.
The court observed that the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file the written statement is discretionary and the trial court in the exercise of discretion may permit the defendant to file a written statement even after the statutory period of 90 days, as provided by Order 8 Rule 1 of C.P.C. The discretion has to be exercised reasonably for the advancement of justice. Further, the Court said that where the respondent has applied under Section 24 of the Hindu Marriage Act for the grant of litigation expenses, the said respondent cannot be compelled to file a written statement unless an order is passed on the said application. If an order is passed in favor of the respondent directing the petitioner to pay litigation expenses, the respondent is expected to file a written statement only after the amount is paid to the respondent.
The decision of the Court:
The Allahabad High Court, dismissing the petition, held that the discretion exercised by the court below cannot be said to be perverse or against the settled principles of law and therefore, requires no interference.
Case Title: Devraj Singh vs Babli Devi
Coram: Hon’ble Mr. Justice Manish Kumar Nigam
Case No.: MATTERS UNDER ARTICLE 227 No. - 5882 of 2018
Advocate for the Petitioner: Mr. Mithilesh Kumar Tiwari
Advocate for the Respondent: Mr. Pradyumn Kumar
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