CHANDINI Vs. BABURAJ

JUDGEMENT

(1.) The appellant suffered an ex parte decree of divorce in O.P.No.928/2018 filed by the respondent against her before the learned Family Court, Palakkad. This decree was issued on 11/1/2024; subsequent to which, she filed I.A.No.01/2024 seeking that it be set aside, invoking the provisions of Order IX Rule 13 of the Code of Civil Procedure (CPC). She explained that she was laid up due to fever from 10/12/2023 to 23/12/2023; and that thereafter, her children also contracted the disease and had to be taken care of from 21/12/2023 to 11/1/2024, during which time they were also admitted to hospital, thus requiring her personal care and undivided attention. She says that she could not, therefore, contact her lawyer in time to defend the case; and that, in the meanwhile, the decree happened to be issued against her.

(2.) The learned Family Court dismissed the above said application, holding that the appellant had exhibited laches in defending the Original Petition. The opinion of the learned Court is available from paragraph 5 of the impugned order, which is extracted below, since it is self-explanatory:

(3.) Sri.M.S.Sarath - appearing for the appellant, submitted that the findings of the learned Family Court are incorrect and do not take into account the travails of his client, who was forced to defend the Original Petition, even when having to take care of her children. He admitted that though the factual narration of the course of the litigation, as extracted above may be true, the conclusion that his client had refused to cross examine the witness is not accurate, since her Counsel had requested time to do so; consequent to which the learned Court recorded "no cross". He concluded saying that, in any event, his client had filed the application to set aside the ex parte decree within time; and hence that the learned Family Court ought to have shown lenitude, rather than have dismissed the same.