BIJU KUMAR BORAH vs MINAKSHI DAS BORAH

1.This appeal under Section 19 of the Family Courts Act, 1984, has been filed by husband-Biju Kumar Bora-challenging the legality and validity of the

impugned order dated 02.07.2014 passed by the Principal Judge, Family Court, No-2, Guwahati, Kamrup, whereby she has allowed wife’s -

Minakshi Das Borah - Misc(J) Case No. 61/2011 and set aside the exparte decree of divorce against her.

Appellant and respondent got married on 15.12.2003 and out of their wedlock, a boy child was born. They used to live in the house of appellant

where his aunts also used to reside. According to appellant, the relationship of respondent with him after about three months of their marriage became

sour and she used to treat him as well as his aunts with cruelty. The situation became so irresistible for him that, finding no other alternative, he filed

F.C.(Civil) Case No. 320/2007 on 29.08.2007, for dissolution of his marriage with respondent. Respondent also made appearance in the suit on

01.10.2007, but did not file her written statement.

Dramatically, during pendency of the proceeding, parties entered into a written agreement on 04.10.2007 which was duly registered wherein

amongst other terms, respondent agreed not to treat appellant and his two aunts with cruelty and not to quarrel with them in future in any eventuality.

Since, the parties already amicably settled to live a peaceful life by leaving aside their differences, appellant abandoned the divorce proceeding

midway by not taking steps. However, the proceedings somehow did not die down and remained pending. But, the respondent allegedly did not honour

the conditions of the agreement binding her and continued with her earlier attitude and cruel behaviour towards appellant and his aunts and hence, he

again pursued the divorce proceedings and took steps. Notice to respondent was issued, but could not be served on 19.09.2008 and 20.09.2008 as she

was shown to be absent in the address and as per the endorsement made in the envelope, she refused to accept the notice when it was again

attempted to be served on her on 22.09.2008. Hence, the divorce proceedings proceeded ex-parte and ultimately, the Family Court decreed the suit as

aforesaid vide judgment and decree dated 03.06.2009 and 18.01.2010, by dissolving their marriage.

Appellant then communicated the said judgment to respondent vide certificate of posting on 20.08.2009. But, in spite of her knowledge about the

dissolution of their marriage, respondent stayed with appellant and at night on 02.09.2010, she attempted to kill him. The respondent also quarreled

with the aunts of appellant and so, he filed a complaint before the Chief Judicial Magistrate, Kamrup, on 03.09.2010 for protecting him from her, which

on being forwarded to the Latasil Police Station, was registered as Latasil Police Station Case No. 157/2010. Police subsequently arrested the

respondent for an offence under Section 307 of the Indian Penal Code from the house of appellant and later on released on bail. On that day also,

respondent was informed about dissolution of their marriage.

On 23.05.2011, respondent filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte Judgment and

decree, which was registered as Misc.(J) Case No. 61/2011. In that application, she took the plea that the judgment and decree was obtained by

appellant maliciously behind her back and she was never informed about the same till her arrest. She further contended that appellant made her to

believe that consequent upon their amicable settlement as aforesaid, he had withdrawn the divorce proceedings and as such she was under bona-fide

belief that the proceeding terminated long back and subsequent stages of the proceeding were not known to her at all. Therefore, she prayed for

setting aside the ex-parte Judgment and Decree.

Appellant filed a written objection contending that the application was barred by limitation as respondent herself admitted that she had the

knowledge of the Judgment and Decree on her date of arrest i.e. 03.09.2010. It was also contended that since no application for condonation of delay

was filed, the application deserved to be dismissed on the ground of limitation. However, the Family Court by way of the impugned order allowed the

application by setting aside the ex-parte Judgment and decree. Hence, this appeal.

It has been submitted by the learned counsel for the appellant that since there was no condonation petition accompanying the application for setting

aside the exparte decree, the Family Court erred in law in allowing the same holding that once the application was accepted on being filed, it amounted

to condoning the delay. In reply, the learned counsel for the respondent has submitted that the Family Court duly considered the relevant facts and

circumstances for which the delay was caused since the respondent was completely at a loss when she got the news of her divorce for the first time

at the time of her arrest whereafter on being sent to jail, she lost her mental stability putting her to a state incapacitating her to decide her next course

of action, for which some delay has been caused and as such, the impugned order does not warrant interference.

After hearing the learned counsel for the parties and perusing the records, we do not find any error either in law or in facts, in the impugned order

of the Family Court. Respondent has categorically stated that she came to know about the ex-parte judgment and decree for the first time after her

arrest i.e. on 03.09.2010 and thereafter she was sent to jail hazot. Naturally if a woman is suddenly arrested by police and sent to jail hazot, her mental

stability is bound to be destabilized. When she regained her senses to a considerable extent and chose to approach the court of law for redressal of her

grievances, she was not expected to do it without the help of a lawyer and she being a laymen not well conversant with intricate legal procedural

complexities and formalities, had no other alternative but to entirely depend on her learned counsel. In such a situation, if she was not advised to file a

petition for condonation of delay, she was not liable to suffer the ill consequences for the same that too, for inappropriate advice of the learned

counsel, to her prejudice. In matrimonial dispute, equity, justice and good conscience demand that each and every case is to be considered from their

respective individual peculiar facts and circumstances and not in a straight jacket formula and delay should normally be condoned when there is

sufficient merit in the case. Even if, there was some lapse on the part of the party or his/her engaged counsel in this regard, the court duly considered

the circumstances for such lapse and adjudicated the matter which amounts to due consideration of the reasons for condoning the delay. It is

important and most pivotal that the court considered the facts and circumstances for condoning the delay from their proper perspectives and not

otherwise. In the instant case, the Family Court duly considered that the respondent failed to approach the court within the stipulated time due to

sufficient cause. The Family Court discussed the same and also expressed its view that once the application was admitted for hearing, it amounted to

condoning the delay in filing the same and as such, we find no fault in that observation. The Family Court applied its judicious mind and came to a

logical conclusion for which no interference is warranted.

Besides, it is seen that respondent was arrested from the house of the appellant meaning thereby that she was living with appellant even after the

dissolution of their marriage. She contended that she was given the impression by appellant that subsequent to their amicable settlement, the divorce

proceedings were annulled. We have no reason to disbelieve this statement. Appellant suppressed the material fact of entering into the amicable

settlement before the Family Court while procuring the ex-parte judgment and decree, showing that he did not come with clean hands. There is

sufficient prima-facie case to show that appellant obtained the ex-parte judgment and decree by concealing relevant and material facts and as such,

the respondent deserved an opportunity to discredit appellant’s contentions by adducing evidence. It is to be noted that respondent has been

acquitted of the charge under Section 307 by the Sessions Court on a specific finding that prosecution miserably failed to prove its case against her.

Therefore, we are of the considered view that the Family Court rightly passed the impugned order and as such, the same does not warrant our

intervention. For the reasons assigned herein above, we find no merit in the instant appeal and as such the appeal is dismissed. The order of this court

dated 22.10.2014 passed in the connected Miscellaneous Case No. 2905/2014 staying the operation of the impugned order is hereby vacated. The

parties are directed to appear before the Family Court on 20.03.2018 and participate in the proceedings. The Family Court shall make every

endeavour to dispose of the matter within 6(six) months from the date of their appearances.

With the above directions, appeal stands disposed of. Send back the Lower Court Records immediately. No order as to costs.