Sumit Chawla vs Smt Deepika
2023 Latest Caselaw 17880 MP

                                                             1
                            IN      THE     HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                       BEFORE
                                         HON'BLE SHRI JUSTICE ANAND PATHAK
                                              ON THE 27 th OF OCTOBER, 2023
                                              MISC. PETITION No. 6484 of 2023

                           BETWEEN:-
                           SUMIT CHAWLA S/O SHRI SURESH KUMAR CHAWLA,
                           AGED ABOUT 31 YEARS, OCCUPATION: BUSINESS R/O
                           BLOCK NO 3 FLAT NO 301 SHUBHAM COMPLEX
                           NOGAJA ROAD P.S. INDERGANJ GWALIOR (MADHYA
                           PRADESH)

                                                                                          .....PETITIONER
                           (BY SHRI VIVEK KHEDKAR - ADVOCATE)

                           AND
                           SMT DEEPIKA D/O SHRI GOPAL DAS CHABRA W/O SHRI
                           SUMIT   CHAWLA,    AGED    ABOUT   30   YEARS,
                           OCCUPATION: HOUSEWIFE R/O ANGRE COLONY GALI
                           NO 3 LALA KA BAZAR LASHKAR GWALIOR (MADHYA
                           PRADESH)

                                                                                       .....RESPONDENTS
                           (NONE)

                                 This petition coming on for admission this day, th e court passed the

                           following:
                                                              ORDER

The present petition is preferred under Article 227 of the Constitution by the petitioner/husband being aggrieved by the order dated 07.10.2023 passed by the Family Court, Gwalior whereby application under Order IX Rule 13 of CPC preferred by the respondent has been allowed.

2. Precisely stated facts of the case are that marriage was solemnized between petitioner and respondent on 13.10.2019. On account of matrimonial dispute between husband and wife, on 02.08.2020, a complaint was made by Signature Not Verified Signed by: ASHISH CHAURASIA Signing time: 30-10-2023 07:44:38 PM

the respondent at police station and thereafter, matrimonial dispute arose. Meanwhile, petitioner filed an application under Order 13 (1)(ia)(ib) of Hindu Marriage Act before the Court of competent jurisdiction for divorce. In which notice was issued against the respondent. As alleged, notice was duly accepted by father of respondent but apparently did not inform the daughter about the pending application of divorce. Therefore, respondent did not appear on 15.09.2022 before the trial Court and trial proceeded ex-parte against her. Thereafter, matter proceeded and fixed for recording of evidence. Statement of applicant's witnesses were duly recorded and Court decreed the suit on 10.01.2023.

3. Meanwhile, respondent preferred an application under Section 125 of Cr.P.C. also against the petitioner for maintenance but later on, she withdrew the application. Thereafter, an application was preferred under Order XI Rule 13 CPC alongwith Section 5 of Limitation Act and same was allowed therefore, petitioner is before this Court.

4. It is the submission of counsel for the petitioner that family court erred in accepting the application under Order XI Rule 13 of CPC preferred by the respondent while condoning the delay. Delay could not have been condoned. He relied upon the judgment of Hon'ble Apex Court in the case of M.K.Prasad Vs. P. Arumugam , 2001 (6) SCC 176, Narmada Club & Anr. Vs. Shri P.K.Tare 2004 (2) MPJR 315 and the judgment passed by this Court in the case of Darshan Singh and Ors. Vs. Collector Singh and Ors., 2010 (1) MPHT 75 .

5. Heard the counsel for petitioner on admission.

6. On perusal of impugned order dated 07.10.2023, it appears that Court

Signature Not Verified Signed by: ASHISH CHAURASIA Signing time: 30-10-2023 07:44:38 PM

below has allowed the application under Section 5 of Limitation Act preferred by the petitioner.

7. In the present case, notice as alleged by the petitioner is served over father of respondent. Therefore, admittedly notice was never served over respondent in individual capacity. Therefore, it cannot be assumed that respondent was served with notice. She came to know about the filing of divorce petition and subsequent order passed into it when she moved an application under Section 125 of Cr.P.C. and when mediation proceedings were held in the said case then petitioner disclosed the fact that he cannot keep respondent with him because he has taken divorce ex-parte from respondent. Thereafter, respondent collected the documents/order and after contacting the lawyer, filed the application under Order IX Rule 13 of CPC. Therefore, delay consumed in filing the application was sufficiently explained. Therefore, there is no error apparent on record caused by the Court below in allowing the application under Section 5 of Limitation Act.

8. Even otherwise, in the case in hand, the way petitioner obtained divorce decree itself is a mechanism adopted usually by the parties who intend to get the divorce. Whether the notice was served over father of respondent or not and whether this would amount to effective service or not, all these things are to be discussed in the application. At this stage, when delay has been

condoned on sufficiency of cause, no interference can be caused. Judgments relied by the petitioner move in different factual realm because the case discussed in Darshan Singh and Ors. (supra) was in second appeal and was in respect of suit for declaration of title and injunction. Here, petition is under Article 227 of Constitution and scope is very limited. Beside that petitioner has obtained divorce decree and now intends to take the advantage of that ex-parte Signature Not Verified Signed by: ASHISH CHAURASIA Signing time: 30-10-2023 07:44:38 PM

decree. Same is not permissible because of the fact that even playing field has not been provided to the respondent.

9. Scope of petition under Article 227 of Constitution is very limited (See:- Shalini Shyam Shetty Vs. Rajendra Shankar Patil: (2010) 8 SCC 329 and Ved Prakash Mukhariya Vs. Balmukund Sharma and others, 2011 (4) MPLJ 108).

10. In cumulative analysis, Court below has rightly condoned the delay therefore, no case for interference is made out.

11. Resultantly, petition sans merit and is hereby dismissed.

(ANAND PATHAK) JUDGE Ashish*

Signature Not Verified Signed by: ASHISH CHAURASIA Signing time: 30-10-2023 07:44:38 PM