MUSTHAFA P.S. Vs. NAZEERA BEEGUM AND ORS.

JUDGEMENT

(1.) The Family Court refused to condone the delay in filing the petition to set aside an ex parte decree and consequently refused to set aside the ex parte decree. Aggrieved by the said refusal this appeal has been preferred. Appellant is the husband in a marital relationship while respondents are the wife and children. In this judgment, the parties are referred to as husband and wife.

(2.) O.P. No. 1104/2011 on the files of the Family Court, Palakkad, was filed by the wife and children seeking return of 32 sovereigns of gold ornaments. Husband was set ex parte and an ex parte decree was passed on 20/2/2014. After 1885 days' of the ex parte decree (on 21/5/2019), husband filed a petition as IA. No. 1121/2019 to set aside the ex parte decree and IA. No. 1120/2019 to condone the delay in filing the petition to set aside the ex parte decree. In the affidavit, supporting the applications, the reason stated was that the husband was under treatment for mental illness and that the delay of 1885 days was caused on account of that. The wife filed objections contending that the case projected by the husband was false and pointed out four circumstances controverting the alleged reason of mental illness. It was stated that during 2014, the husband was an accused in a criminal case and he was appearing before the Sessions Court regularly, that he is conducting an Auto Consultancy business by himself before and after the decree and also that, after throwing out the wife, he has married another lady and has a child through her. It was also pointed out that in the original proceedings, the husband had attempted to get himself represented by his mother, as guardian and filed IA. No. 2320/2012 for that purpose. In the said application, the Family Court personally examined the husband and also got him examined by a medical board, who, after assessing him, reported that he was not suffering from any mental illness. According to the wife, the Family Court rejected IA. No. 2320/2012 and granted him time to file objection and he was later set ex parte, after several adjournments due to his failure to file even the objection.

(3.) The Family Court by the impugned order, dismissed the applications finding that there was nothing on record to prove that the petitioner remained as a person incapable of protecting his interests or that the alleged mental illness rendered him incapable of protecting his interests or forming his defense.