Amar Somany vs Ms. Prerna Somany

Paramjeet Singh, J.—Instant petition has been filed under Article 227 of the Constitution of India read with Section 115 of CPC for setting aside the order dated 06.04.2013 (Annexure P-3) passed by learned District Judge, Family Court, Gurgaon whereby the application of the petitioner under Order 8 Rules 1 and 10 read with Section 151 CPC for striking of defence of respondent and passing a decree of divorce, has been dismissed. Briefly stated, the facts of the present petition are that the petitioner filed a divorce petition u/s 13(1)(ia) of the Hindu Marriage Act, 1955 on 9.4.2012. Upon notice, the respondent put in her appearance through her counsel on 26.07.2012 and the matter was adjourned to 09.08.2012. Due to non-appearance on behalf of respondent on 09.08.2012, notice was ordered to be issued to respondent for 23.10.2012. On 11.12.2012, the respondent put in her appearance and the case was fixed for 04.01.2013 for mediation and conciliation. On 04.01.2013, report was received from mediation and conciliation centre that the parties had failed to arrive at any settlement. On that day, the respondent also filed two separate applications under Sections 24 and 26 of the Hindu Marriage Act, 1955 and the matter was adjourned for filing replies to the applications by the petitioner and written statement by the respondent on 24.1.2013. On 24.1.2013, the respondent also could not file her written statement and the matter was adjourned to 2.2.2013. On 2.2.2013, the petitioner moved application under Order 8 Rules 1 and 10 read with Section 151 CPC, however, written statement on behalf of the respondent was not filed and the matter was adjourned to 4.2.2013. On 4.2.2013, reply to the application under Order 8 Rules 1 and 10 read with Section 151 CPC and written statement were filed on behalf of the respondent and the matter was adjourned to 6.4.2013 for arguments on applications. Vide impugned order dated 6.4.2013 (Annexure P-3), learned District Judge, Family Court dismissed the application under Order 8 Rules 1 and 10 read with Section 151 of CPC, moved by the petitioner. Hence, this petition.

I have heard learned counsel for the petitioner and perused the record.

Learned counsel for the petitioner contended that after putting in her appearance, the respondent did not file the written statement within 90 days from the date of service of summons on her, therefore, the impugned order is illegal and not in accordance with law.

I have considered the contention of learned counsel for the petitioner.

In this petition, the petitioner has averred that since the respondent had filed written statement after the expiry of period of 90 days from the date of service of summons on her, therefore, her defence should be struck of. In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), , it has been held by the Hon''ble Supreme Court that in the facts and circumstances of a given case, more than 90 days can be granted for filing written statement. The proviso under Order 8 Rule 10 of CPC provides that the Court has discretionary power to allow a person to file written statement even after expiry of 90 days provided in Order 8 Rule 1 of CPC. Moreover, the said provision being rule of procedure has to be held to be directory and not mandatory in nature. This provision has to be applied with some flexibility and not with rigidity or inflexibility. Rules of procedure are handmaid to the administration of justice and are meant to meet the ends of justice and not to thwart or obstruct the same. In view of above, the instant petition is dismissed in limine and the impugned order dated 06.04.2013 is upheld.