S.Murugesan vs R.Suguna
2023 Latest Caselaw 6511 Mad

                                                                                   C.M.A.No.1208 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 19.06.2023

                                                            CORAM

                           THE HON'BLE MRS. JUSTICE J.NISHA BANU
                                            AND
                     THE HON'BLE MR. JUSTICE D.BHARATHACHAKRAVARTHY

                                                      C.M.A.No.1208 of 2017
                                                              and
                                                      C.M.P.No.6157 of 2017

                     S.Murugesan                                                       ... Appellant
                                                               Vs.

                     R.Suguna                                                  ..Respondents

                                  Civil Miscellaneous Appeal filed under Section 19(1) of the
                     Family Courts Act, 1984 against the judgment and decree dated
                     02.09.2016 made in I.A.No.154 of 2016 in F.C.O.P.No.310 of 2013 on
                     the file of the Family Court, Salem.
                                        For Appellant       : Mr.Zeenath Begum

                                        For Respondent      : No appearance

                                                       JUDGMENT

This Civil Miscellaneous Appeal is filed aggrieved by the fair and

decretal order dated 02.09.2016 in I.A.No.154 of 2016 in

F.C.O.P.No.310 of 2013 on the file of the Family Court, Salem, in and by

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which, the application filed by the respondent/wife to condone the delay

of 409 days in filing the application to set aside the exparte decree was

allowed by the trial Court.

2. The learned counsel for the appellant would submit that even a

perusal of the affidavit filed in support of the application, there is

absolutely no reason whatsoever had been mentioned. In that view of the

matter, the trial Court ought not to have allowed the application to

condone such a huge delay of 409 days.

3. We have considered the said submission made on behalf of the

learned counsel for the appellant. Even though the respondent remained

absent before this Court, on perusal of the material records of the case,

we find that firstly, the respondent is living with two children born out

of the wedlock. Secondly, the affidavit filed in support of the application

says that in view of the fact that the respondent/wife was misled about

the pendency of the divorce application, she did not have knowledge and

therefore, the delay had occurred. Therefore, considering the said reason

given in the affidavit filed in support of the application and considering

the fact that in matrimonial matters atleast one opportunity should be

given to the parties to contest the matter on merits, we find no merits in

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the Appeal. Accordingly, the Civil Miscellaneous Appeal is dismissed.

In view of the time lapse, the trial Court is directed to take up the

application for setting aside the exparte decree and to proceed with the

same in accordance with law. No costs. Consequently, connected

miscellaneous petition is closed.

                                                                (J.N.B,J.)    (D.B.C, J.)
                     Index        : Yes / No                          19.06.2023
                     Internet     : Yes
                     vsi



                     To

The Motor Accidents Claims Tribunal, IV Additional District Court, Coimbatore.

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J. NISHA BANU, J.

and D.BHARATHA CHAKRAVARTHY,J.

vsi

C.M.A.No.1208 of 2017

19.06.2023

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