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Madhya Pradesh High Court · body

2013 DIGILAW 1094 (MP)

Rupali Badkatte v. Sachin Bakshi

2013-09-10

U.C.Maheshwari

body2013
ORDER (Oral) 1. The petitioner has filed this petition being aggrieved by the order 5.8.2013, (Ann. P-3) and 16.8.2013, (Ann. P-4) passed by the Ist Additional Principal Judge, Family Court, Bhopal in Regular Civil Suit No. 162-A/12, whereby by first order, (Ann. P-3) after expiry of 90 days from the service of the notice of suit, her right to file W.S. has been closed and by the subsequent order ( Ann. P-4) her application filed for taking annexed W.S. on record has been dismissed, as the same was filed barred by limitation and contrary to such earlier order, (Ann. P-3). 2. Having heard the counsel, keeping in view their arguments advanced, after perusing the record along with the impugned orders, I am of the considered view that this petition deserves to be allowed but subject to payment of some costs to other side. 3. True it is that after receiving the summon of the impugned petition filed under section 13(1)(ia) on the ground of cruelty under the Hindu Marriage Act 1955, (in short “The Act”) for divorce on the grounds of cruelty within 90 days inspite taking various adjournments, W.S. was not filed on behalf of the petitioner, on which vide order dated 5.8.2013, her right to file the W.S. was closed. Subsequent to that along with an application with a prayer for condoning the delay in filing the W.S. was placed before the Family Court but on consideration such application was dismissed and pursuant to that W.S. was not taken on record. 4. It is undisputed fact that the petitioner and the respondent are married with each other but subsequently as alleged on account of their differences, they are residing separately. Thereafter the impugned case and one other case in some Court of Ahamdabad are pending between them and as per available record the petitioner is resident of Ahmadabad while as per submission of the respondent’s counsel, she is residing abroad in United Kingdom and doing some job. There can not be two versions on the question that matrimonial dispute between the husband and wife is very sensitive matter and, therefore in any litigation of them in the normal course should be decided on merits, if possible. There can not be two versions on the question that matrimonial dispute between the husband and wife is very sensitive matter and, therefore in any litigation of them in the normal course should be decided on merits, if possible. As such same should not be thrown away on account of some technicalities of law and on account of any technicality if any right of the party of such litigation is seriously affected, then in that situation the purpose of the system may not be fulfilled. In such premises, Court has to consider the situation that when defaulter party comes forward at the appropriate stage before recording of exparte evidence of other side with the W.S., then with certain terms and conditions such party should be permitted to defend the matter to save her/his interest. In the case at hand, it is apparent, as stated above that within 90 days from the date of receiving the summon of the petition, W.S. was not filed, on which right of the petitioner to file W.S. was closed by the earlier order but subsequently before recording the exparte evidence of the respondent, the petitioner has come forward with W.S. with an application for condoning the delay in filing the same, but such application has been dismissed by the subsequent order. If such order is maintained, then certainly, it will create another complication between the parties, hence in order to avoid such further complication, in the available circumstances, just to extend the appropriate opportunity of hearing to the petitioner on merits, I deem fit to allow the application of the petitioner by imposition the cost of Rs.5000/- (Rs. Five thousand). Pursuant to it, by setting aside the impugned order, the aforesaid application of the petitioner is allowed and subject to payment of cost Rs.5000/-, the annexed W.S. is taken on record. Till the aforesaid extent the impugned order is set aside. Payment of cost shall be condition precedent for taking the W.S. on record. 5. At this stage, respondent’s counsel submits that according to his instructions from the respondent, the petitioner be directed to deposit such cost with the District Legal Services Committee of the District Court, Bhopal to help poor litigants in their litigations, as such respondent does not want to take such cost. 6. 5. At this stage, respondent’s counsel submits that according to his instructions from the respondent, the petitioner be directed to deposit such cost with the District Legal Services Committee of the District Court, Bhopal to help poor litigants in their litigations, as such respondent does not want to take such cost. 6. In view of such submission, the petitioner’s counsel is directed to deposit the aforesaid cost with the aforesaid District Legal Services Committee of the District Court, Bhopal to help the poor litigants. Depositing of cost shall be the condition precedent for taking the W.S. on record. 7. In the available circumstances, the trial Court is further directed to take an endeavour to expedite the trial of the impugned case and conclude the same on or before 30.9.2014 under intimation to this Court. 8. The petition is allowed, as indicated above.