Jyoti Gadiya vs Ganesh Singh Gadiya And Another

Vipin Sanghi, CJ

DELAY CONDONATION APPLICATION (IA No. 02 of 2022)

By this application, the appellant seeks condonation of delay of 79 days in filing the present First Appeal.

The respondents fairly do not oppose the application to seek condonation of delay of 79 days in filing the present First Appeal.

For the reasons stated in the application, the same is allowed. Delay caused in filing the present First Appeal is, hereby, condoned.

FIRST APPEAL No. 155 OF 2022

Counsel for the respondents states that he has filed his objections. However, the same are not on record. In any event, with the consent of the counsels, we proceed to dispose of the present Appeal at this stage.

The appellant has preferred the present Appeal to assail the ex parte judgment and decree of divorce granted by the Family Court, Haldwani, District Nainital in Case No. 276 of 2020 preferred by the respondent-husband, on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

The appellant has disclosed that she was suffering from certain aliments, which prevented her from participating in the proceedings. We had also interacted with the parties, and during our interaction, she had disclosed that she is suffering from migraine. She has filed her medical record to substantiate her claim. This is stated to be one of the reasons why she could not attend to her cases. She had also engaged a counsel. Her case is that the counsel kept assuring her that he is following up the matter. However, he did not do so and also did not advice her, that she has to file her written statement of defence. She learnt of the passing of the impugned judgment only after engaging another counsel. The appellant appears to have come from a very poor family background.

In these circumstances, it is agreed that the impugned judgment and decree may be set aside, since it is an ex parte judgment, so that the appellant is able to contest the divorce petition on its merits.

Considering the fact that the impugned judgment and decree have serious civil consequences for the appellant, it is only fair that she should get sufficient opportunity to defend herself in such proceedings.

Accordingly, we set aside the impugned judgment and decree. The matter is remanded back to the Family Court, Haldwani, District Nainital for proceeding afresh from the stage of filing of written statement.

The appellant should, however, file her written statement positively within the next four weeks. No further time shall be granted. It shall be her responsibility to appear before the Family Court through a counsel, or in person, as and when necessary.

The respondent-husband shall pay the litigation expenses to the appellant quantified at Rs. 15,000/- within four weeks. He shall also pay ad hoc maintenance to the appellant at the rate of Rs. 15,000/- per month, considering the fact that he is serving with the Indian Army, and his take-home salary, after all deductions, is in excess of Rs. 50,000/- per month. The interim maintenance shall be paid, beginning the 01st of October, 2022.

It shall be open to the parties to agitate their respective rights and defenses, with regard to fixation of interim maintenance, before the Family Court, and the Family Court shall examine the matter, without being influenced by the amount of interim maintenance fixed by us, on its own merits.

We request the Family Court to endeavor to dispose of the divorce proceedings within the next 12 months.

In sequel thereto, pending application, if any, also stands disposed of.