Home > Divorce > HC: Wife to pay 10000/- cost to husband :) : Judgement by women judge

HC: Wife to pay 10000/- cost to husband :) : Judgement by women judge

Bench: R S Dalvi

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

Writ Petition No.8124 of 2010

Mrs.Anuradha Ashok Naik .. .. Petitioner v/s.

Mr.Ashok Sagun Naik .. .. Respondent

Mr.V.M. Bhate for Petitioner.

None for Respondent.

—–

CORAM : SMT.ROSHAN DALVI, J.

DATED : 10th February 2011

ORAL ORDER :

1.Notice of this writ petition has been served through office upon the Respondent/husband on 15th November 2010. He has not signed on the notice. The Respondent/husband has remained absent despite notice. Hence only the Petitioner is required to be heard.

2.Rule. Rule is made returnable forthwith.

3.The Petitioner has challenged the order of the learned Family Court, Judge, Bandra, Mumbai, dated 8th June 2010, refusing to condone the delay in filing her petition for setting aside an ex-parte decree of 2 wp-8124

divorce passed by the Court. The husband obtained the ex-parte decree on 6th June 2007. On the Petitioner s own showing, she would have knowledge of the decree at least on 17th April 2009 through her uncle one Premanand Ganesh Naik with whom the Respondent/husband had a dispute in Vengurla Court. The Petitioner, however, contended that she came to know of the passing of the decree only on 16th June 2009 when the uncle came to Goregaon, Mumbai and handed over the photo copies of the judgment and decree. The Petitioner applied for certified copy and that being illegible applied for additional certified copy and obtained it 14 days before she made the application for setting aside the decree. She claims that there was a delay of 10 days. The arithmetical calculation of 10 days is also seen to be incorrect by the learned Judge. The learned Judge has further correctly appreciated that the uncle, who has been cross-examined, admitted in the cross-examination that he was present before the Vengurla Court on 17th April 2009 and that he had given her a copy of the Family Court decree in Vengurla Court. If that was so, the Petitioner would have knowledge of that fact through husband s uncle in April 2009 and not June 2009 as claimed by her.

4.It is seen that the Petitioner/wife filed her application for condonation of delay in filing the 3 wp-8124

application for setting aside the decree passed by the Family Court on a completely false ground. The learned Judge has recorded evidence on that aspect. The learned Judge has framed the issues and passed a detailed, reasoned order.

5.Though the order of the learned Judge is correct, it is seen that the priority of the learned Judge in disposing of the application as she has done is incorrect. An application for condonation of delay, whether it be of 10 days or 14 days, does not deserve evidence to be led, issues to be framed, precedents to be considered, reasons to be given and judgment to be pronounced in the detailed manner that the learned Judge has done, given the enormous arrears of the petitions pending in the Family Court and the spirit of the Family Court s Act to deal with the dispute on merits such as to bring to an end the entire dispute whether by reconciliation or adjudication. The Act, therefore, specifically eschews technical pleas and their adjudication upon strict procedural requirements under the procedural laws applicable to civil courts.

6.It may be mentioned that the Judges of the Family Court must keep in mind the object and spirit of Sections 14 and 15 of the Family Courts Act. These sections essentially apply to the petitions filed before the 4 wp-8124

Family Court for the main reliefs. Even in the case of those petitions, only a memorandum of evidence is required to be recorded and not the entire evidence at length. Even in those matters any report, statement, document, information or material can be considered by the Court even if it is inadmissible in evidence or irrelevant to the issues. For an innocuous application such as the one for condoning delay of 10 or 14 days, the learned Judge could have only seen the appearance of the aforesaid person before the Vengurla Court and the reliance upon the copy of the Family Court decree therein. Nevertheless she has proceeded to record evidence, consider precedents and then give a judgment. In the ultimate exercise the application is rejected. The parties cannot be heard on merits. Spirit of the Family Courts Act is not respected.

7.It is indeed seen that the Petitioner came out with a false case. However, it is also seen that the difference in the dates of knowledge is between April 2009 and June 2009. Such delay could be condoned on payment of compensatory costs, if required. However, non-condonation is not justified.

8.Consequently, the order of the Family Court Judge, Mumbai, dated 8th June 2010 deserves to be interfered with and is set aside. However, that would be on 5 wp-8124

payment of compensatory costs by the Petitioner/wife to the Respondent/husband in view of her initial false case.

9. Hence Rule is made absolute conditionally as follows:

(i) Upon the Petitioner/wife paying the Respondent/husband Rs.10,000/- by way of costs within two weeks from today, the delay of 14 days in filing her application for setting aside the decree of divorce shall be condoned. If the costs are not paid, the Writ Petition would stand dismissed. The decree of divorce would be confirmed. If the costs are paid, the application for setting aside the divorce decree filed by the husband shall be placed on the board of the Court of the learned Judge, Family Court, for disposal on merits.

10.It is hoped that the learned Judge, Family Court, shall follow not only the letter but also the spirit of the Family Courts Act in disposal of petitions as well as applications.

11.Copy of this order shall be served upon all the Family Court Judges in the State.

(SMT.ROSHAN DALVI, J.)

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