REGI SURESH NAIR Vs. SURESH PUTHARAKKAL NAIR

JUDGEMENT

(1.) Rule. By consent the Application is taken up for hearing today.

(2.) This is an Application filed by the Appellant/wife for condoning the delay of about 5 years, 144 days in filing the Appeal which is against the decree of divorce granted by the trial Court. The Respondent herein has filed a marriage Petition being Petition No.A 1406 of 2005 for dissolving the marriage on the ground of cruelty and alternatively on the ground of judicial separation. The Family Court by its order dated 11 July 2006 passed an exparte decree by dissolving the marriage on the ground that though served the original Respondent/wife has not appeared in the proceedings. The trial Court accordingly allowed the application of the original Respondent/husband on 11 July 2006. It is the aforesaid order which is challenged in this Appeal. Since there is an inordinate delay for more than 5 years, this Civil Application is filed for condonation of delay.

(3.) Mr. Khandeparkar, the learned counsel appearing for the applicant/wife vehemently argued that this is a case in which the Respondent/husband surreptitiously and by committing fraud proceeded with the Family Court application against the wife though the Court summons was never served on the applicant/wife. It is the say of the applicant that the Respondent/husband has played smart and wanted to deceive the wife as according to him, even though the divorce was granted by the trial Court on 11 July 2006, the Respondent/husband never informed about the same and continued to reside as husband and wife all through out keeping the lady in dark. It is submitted by him that subsequently, in order to take away the house wherein the Appellant used to reside with the Respondent/husband, he took out the proceedings for obtaining possession in the Civil Court. At the time when she received the summons regarding the aforesaid matter, she realised that the Respondent wants to take away the possession of the house where she is residing along with him and in fact she came to know for the first time that there is decree for divorce passed by the trial Court. Having realised the said aspect, she filed an application for setting aside exparte decree in which the trial Court condoned the delay. However, the trial Court rejected the application for setting aside the decree on the ground that wife has not made any allegation against the bailiff regarding the service of notice and, therefore, the Family Court did not accept the application for setting aside the exparte decree. Under these circumstances, the Appellant/applicant has chosen to file substantive Appeal against the original order and in the process there is a delay of 5 years and by this Application the said delay may be condoned.