IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.06.2007
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.R.P.NPD.NO.1723 OF 2007
AND
M.P.NO.1 OF 2007
S.Ramprakash .. Petitioner
Vs.
R.Uma Maheswari .. Respondent
This civil revision petition has been preferred under Article 227 of the Constitution of India against the fair and decretal order of the Family Court at Coimbatore in I.A.No.827 of 2006 in HMOP No.92 of 2004, dated 26.3.2007.
For Petitioner : Miss. Asha
for Sarvabhauman Associates
- - - -
ORDER
What is challenged herein is an order of the Family court, Coimbatore made in I.A.No.827 of 2006, seeking to condone the delay of 672 days in making an application to set aside the ex parte order of restitution of conjugal rights.
2.The court heard the learned counsel for the petitioner/husband and also looked into the materials available, in particular the order under challenge.
3.The revision petitioner/husband originally filed HMOP No.92 of 2004 for restitution of conjugal rights on the reasons adduced thereon. The wife/respondent contested the same by filing counter and the same was also pending in court. While the matter stood thus, an ex parte order of restitution of conjugal rights came to be passed by the court on 29.7.2004. Following the same, the husband filed HMOP No.234 of 2006 seeking divorce urging that though an order of restitution of conjugal rights was passed in HMOP No.92 of 2004 and despite all the efforts taken, the wife was not willing to rejoin with him and under these circumstances, it is a fit case for divorce. While the HMOP for divorce was pending, the wife filed an application for setting aside an ex parte order of restitution of conjugal rights passed in HMOP No.92 of 2004, dated 29.7.2004. While doing so, there was a delay of 672 days and hence, she filed an application to condone the delay of 672 days. The application was seriously resisted by the revision petitioner/husband. But, the lower court has allowed the application. Under these circumstances, this civil revision petition has been brought forth before this court.
4.The only contention put forth by the learned counsel for the revision petitioner is that so far as the application to condone the delay was concerned, needless to say, the delay of 672 days was huge and inordinate; that the affidavit filed in support of the application was perused; that the delay was not explained in any way; that having failed to contest the matter in HMOP No.92 of 2004 for restitution of conjugal rights and allowed the court to pass an ex parte order and after filing divorce O.P. in HMOP No.234 of 2006 by the husband, now the instant application has been brought forth in order to cause prejudice and also to take away the right of the petitioner in HMOP No.234 of 2006 seeking divorce and under these circumstances, the lower court should have dismissed the application, but it has allowed the same and hence, the order of the lower court has got to be set aside.
5.After careful consideration of the submissions made and looking into the materials available, the court is of the considered opinion that the order of lower court does not require any interference. It is true, the husband/revision petitioner filed HMOP No.92 of 2004. It is pertinent to point out that it was for restitution of conjugal rights. It is also pertinent to point out that the respondent/wife filed counter statement, detailing the reasons to deny the relief. She has clearly stated in the affidavit filed in support of the instant application that her child was not doing well when the matter was posted for enquiry on 29.7.2004 and hence, she could not attend the court and thereafter, while filing the instant application, there was a delay of 672 days. Now, the only question would be whether the delay could be condoned, which is actually huge. The court is of the considered opinion that the delay has got to be condoned for more reasons than one. First of all, it was a matrimonial matter. Secondly, when the husband came forward with the petition for restitution of conjugal rights, the wife has filed counter statement stating reasons why the restitution of conjugal rights should not be granted. In the course of the affidavit filed in support of the application, she has clearly stated that when she was in matrimonial home, she was driven to her parental home and a child was born and she was all along in the parental home and apart from that, when she was living with her husband, there was cruel treatment exercised by her husband and her parents were forced to give 100 sovereigns of jewels, which were also given to the husband and when she went back to the matrimonial home, he was not satisfied and has pressurised further and under these circumstances, she went to parental home and she was under mental agony. All these things have been brought forth in the course of the affidavit. All would be indicative of the fact that she got defence to be put forth in HMOP No.92 of 2004. Further, it could be seen that the entire cause of action for filing divorce application was only the order that was passed in HMOP No.92 of 2004. All would go to show that the wife must be given an opportunity to put forth her defence in HMOP No.92 of 2004, in particular while it was a matrimonial matter. The lower court has taken into consideration all the aspects of the matter and since it was a matrimonial matter, it has allowed the application. This court is unable to see any reason to interfere with the order of the lower court. Hence, this civil revision petition is dismissed. No costs. Consequently, connected MP is also dismissed.
27.06.2007
Index : Yes
Internet : Yes
vvk
To
The Family Court,
Coimbatore.
M.CHOCKALINGAM, J.
vvk
C.R.P.NPD.NO.1723 OF 2007
27.06.2007