Madras High Court
N.Vijayashree vs S.T.Sundara Babu on 18 June, 2021
C.R.P.No.762 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 18.06.2021
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.762 of 2020
N.Vijayashree ... Petitioner
Vs.
S.T.Sundara Babu ... Respondent
Civil Revision Petition is filed under Section 115 of the Code of Civil
Procedure to set aside the Fair and Decreetal order dated 20.09.2019 in
I.A.No.5894 of 2018 in O.P.No.2308 of 2017 on the file of learned VI
Additional Principal Judge, Family Court, Chennai.
For Petitioner : Mr.Sai Krishna for
Mr.M.K.Kumaraguru
For Respondent : Mr.M.S.Soundararajan
ORDER
The present Civil Revision Petition is filed under Section 115 of Civil
Procedure Code against the order passed in I.A.No.5894 of 2018 in
C.R.P.No.762 of 2020
O.P.No.2308 of 2017 on the file of learned VI Additional Principal Judge,
Family Court, Chennai dated 20.09.2019.
2. The Civil Revision Petitioner, who is the wife of the respondent
seems to have filed I.A.No.5894 of 2018 in O.P.No.2308 of 2017 under
Section 5 of Limitation Act praying to condone a delay of 257 days in filing
the restoration petition in O.P.No.2308 of 2017.
3. The respondent / husband had filed O.P.No.3650 of 2015 before
the learned Principal Judge, Family Court, Chennai under Section 9 of
Hindu Marriage Act, 1995 seeking for restitution of conjugal rights alleging
that after the girl child was born on 21.07.2014, the wife did not turn back to
the matrimonial home. The above petition was allowed exparte by order
dated 14.06.2016. Thereafter, the respondent / husband seems to have
approached the Family Court, Chennai and filed O.P.No.2308 of 2017
seeking for divorce on the ground of cruelty and desertion. This O.P. Was
also came to be allowed in favour of the husband by order dated
23.01.2018. Thereafter, wife had filed I.A.No.5894 of 2018 to condone the
delay of 257 days in filing the restoration petition in H.M.O.P.No.2308 of
C.R.P.No.762 of 2020
2017 and to set aside the exparte judgment and decree made in the above
O.P. Dated 23.01.2018 and to restore the above H.M.O.P. On file.
4. The learned VI Additional Judge, Family Court, Chennai had
dismissed the said petition, viz., I.A.No.5894 of 2018 holding that the
reasons proposed by the wife for condoning the delay in filing the petition
to set aside the exparte decree is not convincing in view of the fact that
each day delay was not explained properly and hence the court does not
find it proper to condone the exorbitant delay of 257 days and dismissed
the application, as against which, the present Revision Petition is filed by
the wife.
5. The learned counsel appearing for the petitioner / wife contended
that the husband / respondent herein had deserted the petitioner and filed
H.M.O.P.No.3650 of 2015 on the allegation that the wife demanded a
share in the property of the parents of the husband as a condition
precedent for living together. Since the husband could not meet the
demands, the wife left the husband and started to live with her parents,
which forced the husband to file a petition for restitution of conjugal rights.
However, when the wife received the notice in H.M.O.P.No. 3650 of 2015,
C.R.P.No.762 of 2020
immediately, the wife approached the husband and enquired about the
same, but the husband had asked her to neglect the notice, as it is only a
formal notice because it is a petition filed for living together. Believing the
husband's words, the wife did not take part in the family court proceedings.
6. The learned counsel further submitted that not knowing the
pendency of the H.M.O.P., the wife, as usual, went and stayed with the
husband for some time and returned to her parents house at the instance
of the husband's instruction. Subsequently, the husband had filed
O.P.No.2308 of 2017 giving a wrong address and obtained an order of
exparte divorce. Thereafter, the husband had contracted second marriage
with one Geethapriya. In fact, the wife, who attended the first death
anniversary of husband's father, viz., father-in-law that took place in his
residence on 03.02.2018, the entire family did not inform her about the
dissolution of the marriage that was ordered by the Family Court on
23.01.2018. Only after the second marriage was solemnized, the wife
came to know about the divorce and restitution of conjugal rights
application filed by the husband by searching the court records.
Thereafter, she filed a petition for condoning the delay, which was
erroneously dismissed by the court below on the ground that each and
every day delay was not properly explained.
C.R.P.No.762 of 2020
7. In contra, the learned counsel appearing for the respondent /
husband filed a typed set and two additional typed sets to prove the
genuineness especially by filing dates and events to impress upon the
court to express that the wife had deliberately left the house and even
though she received notice and summons from the court, had wantonly
obstrained from the court proceedings and upon perusal of the said
documents, the Family Court has come to the correct conclusion in
dismissing the condonation petition, which does not warrant any
interference in the hands of this Court and hence sought to dismiss the
petition.
8. Heard the learned counsels appearing on either side and perused
the records available.
9. This Court is not able to accept the contention raised by the
learned counsel for the respondent, especially when the respondent's
counsel arguing in favour of the order passed by the said learned VI
Additional Judge, Family Court, Chennai dismissing the condonation
petition filed under Section 5 of Limitation Act to condone 257 days delay in
restoring the O.P.No.2308 of 2017. On perusal of the typed set of papers
C.R.P.No.762 of 2020
filed on behalf of the respondent, which is the compilation of all the
proceedings that took place ever since O.P. Filed under Section 9 of Hindu
Marriage Act seeking restitution of conjugal rights, it is no doubt that the
observation of Family Court Judge that each and every day delay need to
be explained is correct, but practically, to explain each and every day delay
is not possible, unless a delay is few days. When the number of days of
delay is more, it is inhumanly impossible to cull out the reasons for each
and every day delay. The phrase 'each and every day' has been wrongly
interpreted in many of the Judgments dismissing the petition filed for
condonation of delay.
10. It is sufficient that the two reasons for the delay is explained as
far as possible, near to the truth. However, the Hon'ble Supreme Court in
various Judgments has directed the High Courts and Subordinate Courts to
take a lenient view as far as possible in favour of the parties seeking to
condone the delay in restoring themselves in the litigation. No man shall
be condemned unheard as far as possible the litigation should meet the
ends of justice by affording an opportunity to either parties, however,
unimaginary frivolous explanation should also be condoned. The
Subordinate Courts should necessarily need to take a lenient view while
C.R.P.No.762 of 2020
deciding the petition to condone the delay, especially, for the matters in
Family Court.
11. In the present case, on perusing the records filed by the husband
and conjoint reasons stated in the affidavt filed in support of I.A.No.5894 of
2018 filed by the wife / petitioner, there arises a lot of doubts, the manner in
which, the husband has moved the Family Court. It is seen from the
records that O.P.No.3650 of 2015 was filed on 22.09.2015, which service
of summons is accepted by the petitioner / wife. However, she denies any
separation from her husband and the husband had deceived stating that
the notice is only for joining together. This restitution of conjugal rights in
O.P.No.3650 of 2015 was ordered on 14.06.2016. It is also seen from the
records that the respondent seeking divorce in O.P.No.2308 of 2017
seems to have filed on 22.06.2017. However, there seems to be a notice
dated 14.02.2017 sent on behalf of wife to the respondent on certain
allegations. This was replied by a reply notice through husband's counsel
on 06.03.2017. On perusing the notice, the husband has not stated
anything about the petition filed by him in O.P.No.3650 of 2015 that too
when that was decreed on 14.06.2016 in favour of the husband. The reply
notice does not contain anything about the court proceedings.
C.R.P.No.762 of 2020
Immediately, thereafter, the husband has filed the divorce petition in
O.P.No.2308 of 2017.
12. Apart from that, the manner in which each and every information
produced by the husband, especially, the call records and all other trivial
issues that was produced before the Family Court picturises the manner in
which the husband has in a hurried manner, contracted the second
marriage, several doubt arises for this Court to consider upon. However,
the petition filed by the petitioner seeking for condonation of 257 days
delay should only be considered in favour of the wife that too when the wife
has pleaded that she was deceived by the husband when the summons
were served on her and that too when they were living together and the
wife had gone only for the delivery. Apart from that, since the husband was
living in a joint family with his parents and promised to take the wife sooner
or later after seeing a separate house and asking the wife to stay at her
parents place, the benefit of doubt that arises is that the manner in which
the husband had filed the case in contradicting statement from restitution of
conjugal rights and the petition filed for dissolution of marriage, the benefit
of doubt should be held in favour of the wife. Merely because the husband
has allegedly contracted the second marriage, the condonation petition to
C.R.P.No.762 of 2020
restore the exparte H.M.O.P, dissolving their marriage should not be
dismissed at the thereshold on the ground that each and every day delay
was not properly explained.
13. In view of the above discussions, this Court is of the view that the
learned VI Additional Judge, Family Court, Chennai should have taken a
lenient view, rather than being harsh on the wife, who is having a female
child born through the respondent through their wed lock, ought to have
allowed the condonation petition. The reasons adduced by the Family
Court is not convinceable, hence it is liable to be set aside.
Accordingly, the present Civil Revision Petition is allowed by setting
aside the order dated 20.9.2019 made in I.A.No.5894 of 2018 in
O.P.No.2308 of 2017 and hence the I.A.No.5894 of 2018 filed by the
petitioner / wife seeking to condone the delay of 257 days in filing a
restoration petition in H.M.O.P.No.2308 of 2017 is allowed and the said
H.M.O.P.No.2308 of 2017 is restored to file. The learned VI Additional
Principal Judge, Family Court, Chennai is directed to issue notice to the
respondent, conclude the proceedings after affording sufficient
opportunities to the petitioner and the respondent and pass orders on
C.R.P.No.762 of 2020
merits and in accordance with law, uninfluenced with any of the
observations made by this Court in this petition.
18.06.2021
Index : Yes/No
Internet : Yes/No
Speaking /Non-Speaking Order
To
1. The VI Additional Principal Judge,
Family Court, Chennai.
2. The Section Officer,
V.R.Section,
High Court, Madras
C.R.P.No.762 of 2020
V.BHAVANI SUBBAROYAN, J.,
ssd
C.R.P.No.762 of 2020
18.06.2021
