NIDHI SAWNANI Vs. HARSH SAWNANI

JUDGEMENT

(1.) An appeal has been preferred under Sec. 19(1) of Family Courts Act, 1984 read with Sec. 151 CPC by the appellant-wife for setting aside order dated January 11, 2023 passed by learned Judge, Family Court whereby the Review Application preferred by the appellant for taking the written statement on record was dismissed.

(2.) In brief, the marriage between the appellant and respondent was solemnized according to Hindu rites and ceremonies on November 17, 2005. Two children were born out of the wedlock on January 20, 2008 and March 07, 2013. Respondent preferred a divorce petition under Sec. 13(1)(ia) and 13(1)(iii) of Hindu Marriage Act, 1955 on June 08, 2016 in which the appellant filed appearance through counsel on January 03, 2017 after receipt of notice and was directed to file her response to the petition. However, the appellant failed to file the written statement despite directions and sufficient opportunities being granted to her. Consequently, on the failure to file written statement, defence of the respondent was directed to be struck off vide order dated December 04, 2017 by the learned Family Court. On an application preferred on behalf of the appellant under Order IX Rule VII CPC for setting aside the order dated December 04, 2017, further opportunity was granted to the appellant to file written statement on July 17, 2018. However, despite opportunity, the appellant failed to file the written statement and consequently, her right to file the written statement was closed on July 17, 2018. Thereafter, an application under Sec. 151 CPC was preferred by the appellant on October 16, 2018 before the learned Judge, Family Court along with written statement for passing necessary directions, which was dismissed vide order dated May 27, 2022 on the ground that no cogent and sufficient reasons were disclosed in the application as to why the written statement was not filed by the appellant despite extending sufficient time and opportunities. The matter was further posted for evidence of the petitioner. A review application further preferred on behalf of the appellant was dismissed vide impugned order dated January 11, 2023 in the absence of any patent error or irregularity in order dated May 27, 2022. Aggrieved against the order dated January 11, 2023, the present appeal has been preferred.

(3.) Learned counsel for the appellant submits that the appellant had filed an application under Sec. 151 CPC for taking the written statement on record on October 16, 2018, since after engaging a new counsel, it was revealed that the right of appellant for filing of written statement stood closed. It is urged that the appellant was under trauma and mental stress since one of the daughters of the appellant was in the custody of respondent. Further, the said application is stated to have been dismissed on May 27, 2022 against which an application for review was preferred, which was dismissed vide impugned order dated January 11, 2023. The delay in filing of written statement is stated to be circumstantial due to mental stress and circumstances beyond control of the appellant. It is further submitted that in case the written statement is not allowed to be taken on record, the defence of the appellant shall be prejudiced and would also impact the future of two young daughters. Reliance is further placed upon Bharat Kalra v. Raj Kishan Chabra, Civil Appeal No.3788 of 2022 decided by the Hon'ble Supreme Court of India on May 09, 2022.