NIMMAGADDA JAGAJJANANI Vs. NIMMAGADDA APPARAO

JUDGEMENT

(1.) This petition is directed against the order dismissing an application for condonation of the delay of 593 days in filing the application to set aside an ex parte decree of divorce. This is an unfortunate case, where there was estrangement between the husband and wife after they lived together for about 19 years after their marriage and they begot two children, who are now aged 24 and 25 years. The husband filed OP No.40/91 on the file of the senior Civil Judge, Gudiwada seeking divorce on the ground of cruelty on the part of the wife. The wife put in appearance by engaging an advocate, but as she failed to file a counter-affidavit despite grant of adjournments repeatedly, she was set ex parte on 20-11-1991 and an ex parte decree of divorce was passed on 4-3-1992. According to the wife she could not file the counter in the main case as she fell down from the terrace and sustained serious spinal injury which necessitated her hospitalisation for a long time. According to her, she came to know about the ex parte decree sometime in October, 1992 and she instructed her Counsel to file an application for setting aside the ex parte decree. She was given to understand that such an application was filed, but it appears that actually no such application was filed. On 21-12-1992 she file Maintenance Case No.58 of 1992 in the I Addl. Judicial Magistrate's Court at Gudiwada under Section 125 Cr.PC for grant of maintenance, in which she made a reference to the ex parte decree of divorce and also stated that she filed an application to set aside the same which is pending. But, as there was no such application, the husband remarried on 7-2-1993. Having come to know about the same, the wife gave a police complaint against the husband forbigamyon 11-6-1993. In that complaint also she staled that the application filed by her for setting aside the ex parte decree was pending. On 16-11-1993 she withdrew MC 58 of 1992. On the next day i.e., on 17-11-1993 she filed the instant application for setting aside the ex parte decree of divorce along with IA No. 1031 of 1993 for condonation of delay of 593 days in filing the main application to set aside the ex parte decree. In the affidavit filed in support of the application for condonation of delay she pleaded that because of the injury sustained by her and her subsequent-hospitalisation she could not take steps immediately and that she has not yet recovered fully from the said injury. The lower Court dismissed the application for condonation of delay observing that it is clear from the documentary evidence on record that the petitioner was not hospitalised during the years 1992 and 1993 and she attended the Magistrate's Court in Gudiwada during the years 1992 and 1993 in connection with MC No.58 of 1992 filed by her and there is no truth in her contention that she could not file the petition to set aside the ex parte decree within time due to her hospitalisation. Accordingly, lower Court dismissed the application holding that the petitioner failed to show sufficient cause for not making the application within time.

(2.) In this revision petition, the learned Counsel for the petitioner assailed the Order of the lower Court by contending that the lower Court failed to consider Exs.A1 to A2, which clearly establish that the ex parte decree was obtained by the husband by playing fraud on the petitioner and that the ex parte decree is liable to be set aside as the same was passed without any regard for the conditions mentioned in Section 23 of the Hindu Marriage Act. It may be mentioned that Ex.A1 is a certificate dated 28-7-1992 said to have been issued by the Revenue Divisional Officer, Nizamabad to the effect that on a complaint made by the petitioner herein to the District Collector, Nizamabad, complaining of harassment and ill-treatment from her husband, both parties were called to the Revenue Divisional Officer's Office and their problems were discussed at length and it was decided to continue them in one residence for some period and accordingly from October, 1991 till the end of June, 1992, both lived in one place and have settled their issues.

(3.) The learned Counsel for the petitioner has contended that while the parties were living together the ex parte decree was obtained in March, 1992 by playing fraud. Ex.A2 is a letter dated 14-1-1993 said to have been addressed by the clerk of the petitioner's advocate to one M. Narahari. Though the letter is purported to be addressed to M. Narahari, the contents of the letter go to show that it is really addressed to the petitioner. The said letter appears to have been written informing the petitioner about the developments in the MC filed by her for maintenance. There is however, a reference to the sub-Court papers and it is stated that the same will be sent to Apparao i.e., the respondent herein, after the subordinate Judge returns to duty on 22/01/1993. According to the learned Counsel for petitioner, this refers to the application for setting aide the ex parte decree and this clearly shows that the petitioner was made to believe that the said application was, in fact, filed in Court and the same was pending.