Observing that a court should use its discretion, the Bombay High Court has set aside an order of a civil judge in Baramati, who refused to condone the delay made by a woman in an application urging to dismiss a divorce decree granted to her husband ex-parte.
Saying that this was a fit case where the concerned judge should have deemed proper to exercise his jurisdiction, Justice Roshan Dalvi recently quashed the order of Baramati Civil Judge passed on July 9, 2004, refusing to condone the delay made by the woman in making an application.
The High Court judge observed that the concerned judge ought to have heard her application for setting aside the decree of divorce on merits. “The delay if any, which has been refused to be condoned is seen to be deserving of condonation and hence condoned”, Justice Dalvi said.
The High Court asked the concerned judge to expeditiously hear the plea of the wife for setting aside the decree of divorce dated December 31, 2001, on merits.
The woman, Snhel alias Nandini Ghante, pleaded that she was not served at her last known residence. She said that this fact had been admitted by the respondent husband in his cross-examination, which has been stated in her application.
“Once it is seen that the petition was not served at the last known address of the petitioner, the divorce decree would be required to be reconsidered,” Justice Dalvi observed.
The judge noted that the divorce decree was passed on December 31, 2001. Husband, Dattatraya Ghante, has since remarried. The right of wife to claim maintenance may yet be not affected, even despite the remarriage of the husband.
“Such merits of the case are most material to bear in mind by a court whilst considering the right of a party in having the matter re-agitated on the ground of want of service and in considering the validity of decree of divorce in the first place,” Justice Dalvi remarked.
The court noted that the divorce decree having been passed was served upon the woman on June 14, 2002. Hence she obtained the knowledge of the decree from that date. It is her case that she got a mental shock and was hospitalised from June 15, 2002 to June 27, 2002. However, she had not produced any hospital records.