Sunita Bhatia v. Vineet Bhatia

1. Allowed, subject to just exceptions.

2. The application is disposed of. CM(M) 909/2018 & CM No.32134/2018 (for stay)

3. This petition under Article 227 of the Constitution of India impugns the order (dated 13th April, 2018 in HMA No.1743/2014 of the Court of Principal Judge, Family Court (Central)) of dismissal of the application of the petitioner/wife under Section 151 of the Code of Civil Procedure, 1908 (CPC).

4. The counsel for the petitioner/wife has been heard.

5. The respondent/husband has filed the proceedings, from which this petition arises, for dissolution of marriage with the petitioner/wife, under Sections 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955. On the failure of the petitioner/wife to file written statement, the defence of the 2018:DHC:5056 petitioner/wife to the aforesaid proceedings for dissolution of marriage was struck off. The petitioner/wife, on 30th January, 2018, moved the application aforesaid under Section 151 CPC for taking the written statement on record and for condoning the delay in filing thereof. The only ground pleaded in the application was, (i) that a new counsel for the petitioner/wife entered appearance on 29th January, 2018; (ii) that the petitioner/wife is working as Dak Peon with the District Court and the daughter of the parties is suffering from Sugar and Thyroid and the petitioner/wife is taking care of the said daughter; and, (iii) that the petitioner/wife was not aware of the requirement to file written statement within a period of 90 days.

6. The respondent/husband contested the aforesaid application by filing the reply, inter alia pleading (a) that the application had been filed after three years of the date of first appearance of the petitioner/wife in the aforesaid proceedings; (b) that the delay of two and a half years in filing the written statement could not be condoned; (c) that it was on account of repeated defaults of the petitioner/wife to file the written statement, that the order striking off her defence was made; and, (d) that the delay on the part of the petitioner/wife was intentional.

7. The application has been dismissed vide the impugned order, reasoning (i) that the petitioner/wife was served with the notice of the petition for dissolution of marriage on 25th October, 2014 and had put in first appearance on 22nd May, 2015; (ii) that on 17th November, 2015 yet another opportunity to file written statement subject to payment of costs of Rs.1,000/- was granted; (iii) that the cost was not paid inspite of several opportunities; (iv) that as there was continuous delay on the part of the petitioner/wife in filing the written statement, the defence was struck off;

(v) that the application itself had been filed belatedly, on 30th January,

2018, after nearly 11 months of the order of striking off of the defence; (vi) that the only argument of the counsel for the petitioner/wife was that she had been regularly appearing in the matter but her advocate did not brief her correctly and when she engaged a new advocate, she was made aware that her defence had been struck off; (vii) that the aforesaid argument of the petitioner/wife was not fathomable; (viii) that the petitioner/wife, working as a Dak Peon in the District Court, could have easily ascertained the nature of the proceedings and about the steps required to be taken therein, if not from her counsel, also from her colleagues in the District Court; (ix) that the parties are in litigation for several years, before several foras including under the Protection of Women from Domestic Violence Act, 2005 and prosecution of the respondent/husband under Sections 498A, 406 and 34 of the IPC; (x) that no mileage could be taken by the petitioner/wife of the only child of the parties being looked after by the petitioner/wife; (xi) that a bare perusal of the order sheet showed that the petitioner/wife had been granted substantive opportunities to file written statement and to contest the petition for dissolution of marriage but in vain; and, (xii) that the allegations against the previous counsel were vague.

8. The petitioner/wife, along with this petition, has not placed before this Court the order sheet of the proceedings for dissolution of marriage and the counsel for the petitioner/wife, when asked about the same, states that the said dates have been set out in the impugned order. The inference is that the petitioner/wife is not disputing the reasoning given in the impugned order.

9. The only argument of the counsel for the petitioner/wife is that the petitioner/wife was ailing. However, on enquiry, whether the petitioner/wife throughout the same period was on leave from her employment in the District Court, the answer is in the negative. This again shown the casual manner in which the proceedings are being pursued.

10. No inference in exercise of jurisdiction under Article 227 of the Constitution of India is required with the impugned order.

11. Dismissed.

RAJIV SAHAI ENDLAW, J. AUGUST 10, 2018 bs