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2017 DIGILAW 650 (GAU)

Rajashree Deb, W/o Sri Gautam Deb v. Gautam Deb, S/o Late Sailen Chandra Deb

2017-05-24

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER : Ajit Singh, J. 1. This appeal has been filed by wife Rajashree Deb challenging the order dated 11/6/2015 passed by the Principal Judge, Family Court, Cachar, Assam in F.C (Civil) Misc. case No. 17/2014 arising out of F.C (Civil) Misc. Case No. 29/2013 and F.C (civil) No.109/2012, whereby she has dismissed her application under Section 5 of the Limitation Act for condonation of delay in filing application under Order IX Rule 13 of the Code of Civil Procedure; to set aside the ex-parte decree dated 05/01/2013 granting divorce to the respondent-husband. 2. The brief facts of the case are these. The appellant was married to respondent on 01/02/2009, where after they started living together as husband and wife in their matrimonial house. But the appellant did not wish to stay with the family members of respondent and insisted to live separately. When respondent denied, the appellant went to her parental house on 13/05/2010 on the plea of attending a Bishnu Puja and did not return in spite of repeated attempts made by him. The respondent then instituted a divorce case in the Court of Principal Judge, Family Court, Cachar, which was registered as F.C. (Civil) Case No.109/2012. 3. Since after leaving the respondent, the appellant was living in her parental house at Brjendra Road, Karimganj, naturally, the said address was known to respondent and the notice of the Court was also sent to that address. The record reveals that the notice was received by the brother of the appellant. However, in spite of service of notice, the appellant did not contest the case and ultimately the ex-parte decree was passed by the Family Court on 05/01/2013 as aforesaid. The respondent then after expiry of the period of limitation for filing appeal against the decree has remarried to another woman. 4. There was also a maintenance case pending between the parties in the Court of Sub-divisional Judicial Magistrate, Karimganj. When respondent produced a copy of that ex-parte decree in that Court on 29/05/2013, the appellant filed a petition under Order IX Rule 13 of the Code of Civil Procedure for setting aside that ex-parte decree. The appellant contended that since she was suffering from some serious female ailments, she could not take immediate steps and as such she was prevented by sufficient cause in preferring the said petition. The appellant contended that since she was suffering from some serious female ailments, she could not take immediate steps and as such she was prevented by sufficient cause in preferring the said petition. Besides, she stated that after leaving her husband’s residence she took shelter in the house of her uncle and as such she had no knowledge about pendency of the divorce case, the notice of which was received by her brother in her parental home; and as such service of notice was not completed in respect of her. Hence, the appellant prayed for condoning the delay. 5. The respondent contested the petition denying the statements made by the appellant and stated that the service was completed and appellant had full knowledge of pendency of the litigation. After getting the decree of divorce, he has remarried and appellant maliciously lodged a First Information Report against him which was registered under Section 498(A) of the Indian Penal Code. But the same has been quashed by the High Court vide order dated 19/02/2014 in Criminal Petition No. 619/2012. Besides, although the appellant contended in her petition that she was living in the house of her uncle, in the petition filed by her, she mentioned the address of her paternal house-where the notice was sent-as her address for correspondence. As such, notice was duly served on her since it was received by her brother and the appellant deliberately did not contest the case to harass him. 6. On hearing the parties, the Family Court dismissed the petition of the appellant by way of the aforesaid impugned order and hence this appeal. 7. The appellant has admitted that the notice was received by her brother, in her parental home and it is evident that she mentioned her parental home, as her place of residence. If a notice is served on an adult male member of the family, the service is said to be duly made and completed. In the instant case, notice was served and received by the brother of the appellant and as such, there is no ground to say that the notice was not duly served. Besides, although the appellant claimed that she had been suffering from serious female related ailments, no such prescription was placed before the Family Court and only one certificate from a medical practitioner was produced. Besides, although the appellant claimed that she had been suffering from serious female related ailments, no such prescription was placed before the Family Court and only one certificate from a medical practitioner was produced. Therefore, there is no material on record to show that the appellant was prevented by sufficient reason either in contesting the divorce case or filing the petition under Order IX Rule 13 of the Code of Civil Procedure. It is to be mentioned herein that although day-to-day explanation is not required to be given by the appellant for condoning the delay in filing an application or appeal, yet the circumstances which prevented her from preferring the application or appeal on time must be suitably explained and the reason must be sufficient for which the application or appeal could not be filed within the statutory period of limitation. We are of the considered view that the reason advanced by the appellant in not preferring the application within statutory period is not sufficient and as such the Family Court has rightly rejected the same. 8. Accordingly, the appeal stands dismissed.