Research › Search › Judgment

Tripura High Court · body

2016 DIGILAW 369 (TRI)

PRANAB DEBNATH v. DEBJANI DEBNATH

2016-11-11

S.C.DAS, T.VAIPHEI

body2016
JUDGMENT : T. VAIPHEI, J. 1. This first appeal U/s 19 of the Family Court Act, 1984 is directed against the judgment dated 31-3-2015 passed by the learned District Judge, South Tripura, Belonia in T.S. (Divorce) No. 39 of 2014 dismissing the suit filed by the appellant for a decree of divorce against the respondent after the expiry of the statutory period of judicial separation. 2. The facts giving rise to this appeal, which are relevant for disposal of this appeal, may be briefly noticed. On the expiry of the statutory period of judicial separation, the appellant filed an application under Section 13(1 A)(i) of the Hindu Marriage Act, 1955 ("the Act" for short) before the learned Judge, Family Court, West Tripura, Agartala in T.S. (Divorce) No. 22 of 2014 seeking dissolution of his marriage with the respondent by a decree of divorce on or about 13-1-2014 on the basis of the ex-parte decree dated 3-1 2013 in TS (Judicial Separation) No. 413 of 2010 allowing him judicial separation from his wife-respondent. The respondent, however, moved this Court under Section 24, Code of Civil Procedure (CPC) for transferring the case from the file of the learned Judge, Family Court, West Tripura, Agartala to the Court of the learned Addl. District Judge, South Tripura, Belonia. The petition was allowed by this Court and ultimately, the file was transferred to the Court of the District Judge, Belonia. The learned District Judge by the impugned judgment dismissed the suit. This is how this appeal came to be placed before us. 3. In the course of hearing, it has been brought to our notice that the respondent-wife had in the meantime filed an application under Order 9, Rule 13 , CPC before the learned Judge, Family Court, Agartala in Civil Misc. No. 10 of 2015 for condoning a delay of 724 days in filing the application for setting aside the said ex-parte decree obtained by the appellant, but it transpired that the application of the respondent-wife was dismissed on 19 1-2016 on the ground that there was no sufficient cause for the delay in filing the application. The following are the grounds of dismissing the application: "6. The following are the grounds of dismissing the application: "6. Now in deciding the fact whether the delay of 724 days in preferring the petition under Order 9, Rule 13 of CPC by the petitioner for setting aside the ex-parte judgment Dated 03-01-2013 passed in TS (JS) 413 of 2010, is caused due to unavoidable circumstances. On perusal of the certified copy of the orders and judgment in respect of TS (JS) 413 of 2010 submitted by the opposite party, I find that the suit was instituted on 20-12-2010 and since the next date, i.e. on 11-02-2011, the respondent remained present on 6 (six) dates, i.e. 11-02-11, 23-03-11, 19-0411, 10-06-11, 25-07-11 and 13-09-11 and till 22-06-2012, the petitioner was allowed to file written statement in connection with the suit and ultimately on 22-06-2012, the order for ex parte hearing against the petitioner of this case was passed due to her non-appearance and also for non-filing of written statement as respondent. On 16-11-2012, evidence of the petitioner was recorded ex-parte and thereafter on 03-01-2013, the judgment was passed. 7. In such a circumstance, the statements made by the petitioner that she was not aware regarding the instituted (institution?) of TS (JS) 413 of 2010 and she only came to know regarding the ex-parte decree on receipt of notice in connection with TS (Div) 22/14, appears to be not correct. Moreover in para4 of her petition, the petitioner stated that she received notice of TS(Div) 22/14 in the 1st week of March, 2014 and in para-5 of her petition she stated that she was asked to appear before the Family Court, Agartala in connection with that suit on 22-01-2014 also appears t be contrary (sic) and cannot be reconciled in anyway. Moreover, the grounds stated by the petitioner in her petition that she could not prefer her petition under Order 9, Rule 13 of CPC in time due to her pre-occupation as well as due to want of proper advise also appears to be not a good and sufficient ground for condonation of delay for about 2 years specially when it transpired that she has got her knowledge regarding the institution of TS(JS) 413 of 2010 and on many occasions, she also took part in that proceeding appearing before the court. It is also observed by their Lordships in Badal Nama and others v. Rupiya Bibi reported in (2014) 1 TLR 1072 in para11 is as follows: "Usually the courts do exercise their discretion for condoning the delay leniently, but when from the records it surfaces that the lapse or inaction is insurmountable or the petitioner has resorted to a false plea, manifest on the face of the record, the court would decline to condone the delay." 8. So, in view of above, I find no scope to allow the prayer u/s 5 of the Limitation Act for condoning the delay in preferring the application under Order 9, Rule 13 of CPC, as prayed for by the petitioner and as such the prayer stands rejected." 4. The findings recorded by the learned Judge, Family Court extracted above do not suffer from any infirmity calling for the interference of this Court. Apparently, a last ditch effort was made by the respondent to somehow set the ex-parte decree aside by making a false plea, which has been detected by the Family Court in a well-reasoned order. The first appellate court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial court's judgment without opening the whole case for rehearing both on question of facts and law. Order 9, Rule 13, CPC is in the following terms: "13. The first appellate court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial court's judgment without opening the whole case for rehearing both on question of facts and law. Order 9, Rule 13, CPC is in the following terms: "13. Setting aside decree ex parte against defendant.-In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: * * * Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim." The Apex Court in Parimal v. Veena @Bharti, (2011) 3 SCC 545 had an occasion to consider the scope of the aforesaid provisions and observed as follows: "12. It is evident from the above that an ex parte decree against a defendant has to be set aside if the party satisfies the court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein. 13. "Sufficient cause" is an expression which has been used in a large number of statutes. The legislature in its wisdom, made the second proviso mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein. 13. "Sufficient cause" is an expression which has been used in a large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361 , Lonand Grampanchayat v. Ramgiri Gosavi AIR 1968 SC 222 , Surinder Singh Sibia v. Vijay Kumar Sood (1992) 1 SCC 70 : AIR 1992 SC 1540 and Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn. (2010) 5 SCC 459 : (2010) 2 SCC (L&S) 50 : (2010) 2 SCC (Cri) 1291 : (2010) 2 SCC (Civ) 448 14. In Arjun Singh v. Mohindra Kumar AIR 1964 SC 993 this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also Brij Indar Singh v. Kanshi Ram (1916-17)44 IA 218 : AIR 1917 PC 156 , Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee AIR 1964 SC 1336 and Mata Din v. A. Narayanan (1969) 2 SCC 770 : AIR 1970 SC 1953 .) 15. (See also Brij Indar Singh v. Kanshi Ram (1916-17)44 IA 218 : AIR 1917 PC 156 , Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee AIR 1964 SC 1336 and Mata Din v. A. Narayanan (1969) 2 SCC 770 : AIR 1970 SC 1953 .) 15. While deciding whether there is sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide State of Bihar v. Kameshwar Prasad Singh (2000) 9 SCC 94 : 2000 SCC (L&S) 845 : AIR 2000 SC 2306 , Madanlal v. Shyamlal (2002) 1 SCC 535 : AIR 2002 SC 100 , Davinder Pal Sehgal v. Partap Steel Rolling Mills (P) Ltd. (2002) 3 SCC 156 : AIR 2002 SC 451 , Ram Nath Sao v. Gobardhan Sao (2002) 3 SCC 195 : AIR 2002 SC 1201 , Kaushalya Devi v. Prem Chand (2005) 10 SCC 127 , Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd. (2005) 13 SCC 95 and Reena Sadh v. Anjana Enterprises (2008) 12 SCC 589 : AIR 2008 SC 2054 .) 16. In order to determine the application under Order 9, Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application." 5. In the instant case, as already noticed, the application for setting the ex parte decree aside was not filed by the respondent in time. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application." 5. In the instant case, as already noticed, the application for setting the ex parte decree aside was not filed by the respondent in time. Until and unless the ex-parte decree is set aside by a competent court of jurisdiction in an appropriate proceeding, the first appellate court should not have disturbed or interfered with the valuable rights of the appellant which stood crystallised by the ex-parte decree without opening the whole case for re hearing both on question of facts and laws. In Parimal case (supra), the Apex Court again observed: "27. In view of the aforesaid statutory requirements, the High Court was duty-bound to set aside at least the material findings on the issues, in spite of the fact that approach of the Court while dealing with such an application under Order 9, Rule 13 CPC would be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order 9, Rule 13 CPC, the Court has no jurisdiction to set aside an ex parte decree. The manner in which the language of the second proviso to Order 9, Rule 13 CPC has been couched by the legislature makes it obligatory on the appellate court not to interfere with an ex parte decree unless it meets the statutory requirement. 28. The High Court has not set aside the material findings recorded by the trial court in respect of service of summons by process server/registered post and substituted service. The High Court failed to discharge the obligation placed on the first appellate court as none of the relevant aspects have been dealt with in proper perspective. It was not permissible for the High Court to take into consideration the conduct of the appellant subsequent to passing of the ex parte decree. More so, the High Court did not consider the grounds on which the trial court had dismissed the application under Order 9, Rule 13 CPC filed by the respondent wife. The appeal has been decided in a casual manner." 6. More so, the High Court did not consider the grounds on which the trial court had dismissed the application under Order 9, Rule 13 CPC filed by the respondent wife. The appeal has been decided in a casual manner." 6. As indicated earlier, the attempt made by the respondent to set the ex-parte decree aside in the meantime proved abortive inasmuch as her application for condonation of delay was dismissed by the learned Judge, Family Court. Without first condoning the delay in presenting the application for setting aside the decree, there is no question of opening the whole case for re-hearing both on question of facts and law. Yet, the learned District Judge proceeded to hold in the impugned judgment vide para 13 that he found the ex-parte decree obtained by husband-petitioner (the appellant herein) keeping the wife-respondent (the respondent herein) entirely in the dark or that she had no knowledge about the ex-parte decree of judicial separation. He then concluded that the husband-petitioner (appellant herein) could not take advantage of his own wrong for the purpose of getting relief under Section 13(1-A) of the Act. It must be remembered that the proceeding under Section 13(1-A) of the Act should not be confused or mixed up with the proceeding under Order 9, Rule 13 , CPC as they belong to different jurisdictions. Under the guise of disposing of the divorce suit in T.S.(Div) No. 39 of 2014, the learned District Judge could not have set aside the ex-parte decree obtained by the appellant from a competent court of jurisdiction without having it set aside in an appropriate proceeding. As already observed, until and unless the ex-parte decree is set aside by a competent court of jurisdiction in appropriate proceedings after condoning the inordinate delay, the learned District Judge court should not have disturbed and interfered with the valuable rights of the appellant which stood crystallised by the ex-parte decree without opening the whole case for re-hearing both on question of facts and laws. What the learned District Judge did in the impugned order was to unsettle an already settled position of the parties in so far as the issue with respect to judicial separation is concerned. 7. What the learned District Judge did in the impugned order was to unsettle an already settled position of the parties in so far as the issue with respect to judicial separation is concerned. 7. At this stage, it may be noted that the foundation of dismissing the suit for divorce filed by the appellant was based only on the ground that the ex-parte decree of judicial separation had been obtained by the appellant by deliberately concealing the same from the respondent, she had been wronged by him and, therefore, could not take advantage of his own wrong under Section 23 of the Act. The suit for divorce was filed by the appellant under Section 13(1-A)(i) of Act on the ground that there has been no resumption of co-habitation as between him and the respondent for a period of one year or more after obtaining the ex-parte decree of judicial separation. The ex-parte decree was obtained on 3-1-2013. Section 13(1-A)(i) of the Act deals with a decree for divorce after the passing of judicial separation for one year or more on the ground of no resumption of co-habitation, which is as under: "13. Divorce.-(1) * * * (1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or * * *" 8. Even a cursory look at the provision extracted above plainly makes it clear that either of the parties can present a petition for the dissolution of their marriage by a decree of divorce on the ground that there has been no resumption of cohabitation between the parties for a period of one year or more after the passing of a decree of judicial separation in a proceeding to which both of them are parties. In the instant case, the appellant has testified that there has never been any resumption of co-habitation between him and the respondent for more than one year after the passing of the decree of judicial separation on 3-1-2013. In the instant case, the appellant has testified that there has never been any resumption of co-habitation between him and the respondent for more than one year after the passing of the decree of judicial separation on 3-1-2013. Though this statement is denied and contested by the respondent, no evidence is shown by her exactly as to when, where and how such co-habitation had taken place and for how long. There is nothing in her statement except making a sweeping statement that after obtaining the ex-parte decree, the appellant co-habited with her up to the month of December, 2013 and asked her to leave his company on 31st day of December, 2013 as he would file a petition for dissolution of marriage against her. No corroborative evidence is available to substantiate her testimony. In my judgment, once the appellant has obtained a decree for judicial separation, it can be safely presumed that he would not like to co habit with his estranged wife. If the respondent wanted the trial court to believe that they had co-habited even after her husband obtained a decree of judicial separation, then the burden of proof was upon her to convince the trial court that such co-habitation actually had taken place after such a decree. His burden has not been discharged. I may at this stage profitably refer to Section 10 of the Act, which reads thus: "10. Judicial separation.- (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in subsection (1) of Section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so." 9. Section 10(2) of the Act categorically provides that where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in the petition, rescind the decree if it considers it just and reasonable to do so. It may be noted that no application U/s 10(2) of the Act is made by the respondent for rescission of the ex-parte decree. As already noticed, her application for condonation of delay in filing the application to set side the ex-parte decree of judicial separation has been dismissed by the learned Judge, Family Court in his order dated 19-1-2016 of Civil Misc. No. 10 of 2015. The learned District Judge was, however, swayed by the fact that the appellant was not interested in reconciliation or made a serious attempt to co-habit with the respondent. But, in my opinion, such obligation is not cast upon him by law. As can be seen from Section 10(2) of the Act, once a decree of judicial separation is granted, it shall not be obligatory for the petitioner to cohabit with the respondent. In the face of this statutory provision, how can it be insisted that an attempt should be made by the appellant to reconcile or cohabit with the respondent? The language used in Section 10(2) of the Act is plain and cannot be subjected to interpretation. "When the words of a statute are clear, plain or unambiguous, i.e. they are reasonably susceptible to only one meaning, the court are bound to give effect to that meaning irrespective of consequences. The rule stated by TINDAL, C.J. in Sussex Peerage case is in the following form: "If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases". When a language is plain and unambiguous and admits of only one meaning, no question of construction best declare the intent of the lawgiver. The rule is also stated in another form: "When a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself". When a language is plain and unambiguous and admits of only one meaning, no question of construction best declare the intent of the lawgiver. The rule is also stated in another form: "When a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself". The results of the construction are then not a matter for the court, even though they may be strange or surprising, unreasonable or unjust or oppressive. "Again and again", said VISCOUNT SIMONDS, L.C., "this Board has insisted that in construing enacted words, we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used." As said by GAJENDRAGADKAR, J.: "If the words used are capable of one construction only then it would not be open to the courts to adopt any other construction on the ground that such construction is more consistent with the alleged object and policy of the Act".? See Justice G.P. Singh's "Principles of Statutory Interpretation", 14th Edn., pp.55-6. Thus, there can be no room of doubt that the failure/refusal on the part of the appellant to make an attempt to reconcile or cohabit with the respondent cannot be a ground for denial of a decree of divorce when the respondent is unable to prove that she cohabited with the appellant after the latter was granted a decree of judicial separation. 10. The offshoot of the foregoing discussion is that this appeal succeeds. The impugned judgment dated 31-3-2015 passed by the learned District Judge, Belonia in T.S.(Div.) No. 39 of 2014 be and is hereby set aside. Let a decree of divorce be prepared accordingly. The parties are, however, directed to bear their respective costs. Transmit the L.C. records. Interim order, if any, stands vacated.