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2006 DIGILAW 1876 (BOM)

Kanchan Sharma v. Uma Shanker Sharma

2006-11-20

L.NARASIMHA REDDY

body2006
JUDGMENT:- Petitioner is the wife of the respondent. Their marriage was performed on 7-3-2000. The respondent filed H.M.O.P. No.80 of 2003 in the Court of Senior Civil Judge, Vizianagaram, under Section 12 of the Hindu Marriage Act, 1955 (for short 'the Act'), against the petitioner. He alleged that the petitioner became unconscious, on the next day of marriage itself, and that the fact that she was suffering from rheumatic healt disease was not known to him. Without specifying any independent ground, but citing Section 12 of the Act, he sought for annulment of the marriage. At the instance of the petitioner, the O.P. was transferred to the Family Court, Hyderabad and re-numbered as O.P. No.742 of 2004. Through its order, dated 22-12-2005, the Family Court decreed the O.P. The petitioner filed an application to set aside the said decree. Since there was delay of 75 days in filing the same, she also filed I.A. No.376 of 2006, under Section 5 of the Limitation Act, for condonation of the delay. 2. The petitioner pleaded that she had to travel to the places outside the State, and that she suffered ill health at the relevant point of time. The respondent opposed the application. Through its order, dated 7-9-2006, the learned Family Judge dismissed the application. Hence, this Civil Revision Petition. 3. Smt. Anita Ahuja, the learned counsel for the petitioner submits that though the petitioner had filed relevant documents, to prove that she was out of station and unwell, at the relevant point of time, the Family Court dismissed the I.A., by proceeding on hyper technical grounds. She contends that the Family Court itself was not sure, as to whether the decree passed by it 22-12-2005 was ex parte in nature, or not. It is also her case that the decree was passed, on a ground which was not even pleaded and which cannot be sustained in law. 4. Sri Ganshamdas Mandhani, the learned counsel for the respondent, on the other hand, submits that it is the petitioner, who got Section 12(1)(c) of the Act. When such a glaring irregularity has taken place, the Family Court ought to have treated the applications filed under Order IX Rule 13 C.P.C. and Section 5 of the Limitation Act as an opportunity, to correct the mistake, and ought to have decided the matter afresh by applying the correct principles of law. When such a glaring irregularity has taken place, the Family Court ought to have treated the applications filed under Order IX Rule 13 C.P.C. and Section 5 of the Limitation Act as an opportunity, to correct the mistake, and ought to have decided the matter afresh by applying the correct principles of law. However, it has chosen to find fault with the petitioner, by adopting a hyper technical approach. 10. Though the learned counsel for the parties did not express any grievance, in the matter of continuing the proceedings before the same Court, after the delay is condoned, this Court is of the view that to avoid any embarrassment to the learned Family Judge, Hyderabad, in the matter of reconciling the aspects, referred to above, it is thought appropriate to transfer the matter to the Family Court, Secunderabad. 11. For the foregoing reasons, the Civil Revision Petition is allowed and consequently, I.A. No.376 of 2006 shall stand allowed. To avoid further complications in the matter, the order and decree, dated 22-12-2005, passed in O.P. No.742 of 2004, on the file of the Family Court, Hyderabad, are also set aside. The O.P. shall stand transferred to the Family Court, Secunderabad, for fresh adjudication and disposal. It is directed that the petitioner must not commit any default in any step; and in case, there is any non-cooperation from her side, it shall be open to the learned Family Judge, Secunderabad, to set for ex parte and proceed with the matter, in accordance with law. On a day fixed by the learned Family Judge, Secunderabad, the petitioner shall proceed with the cross-examination of P.W.1. without the necessity of filing any further applications, and adduce her evidence, if possible, on the same day, or on day-to-day basis. There shall be no order as to costs. Revision allowed.