RADHA RANI Vs. MAHADEEP SINGH

JUDGEMENT

(1.) This is a petition filed under Article 226 of the Constitution of India by the wife in a matrimonial matter against the order of the Family Court, SAS Nagar, Mohali striking off the defence of the respondent/wife (petitioner in this case). The law to be considered is in Order VIII Rule 1 CPC.

(2.) Learned Judge has passed the order on the ground that the period of 90+30 days [maximum 120 with grace period] for defendant to put in his written statement has elapsed. It has been observed by him, that in these circumstances, the court is left with no other option except to strike off the defence.

(3.) In review of the order, I find an error in this line of thinking, for the reason that it is not a commercial dispute the court was seized of for the judge to be left with no option except to bar the reply. In non-commercial disputes and particularly in matrimonial matters with parties litigating in a divorce petition, there is no cast iron rule to adhere to, where the Court would have "no option" but to strike off the defence on the expiry of 90 days in a petition under Section 13 of the Hindu Marriage Act, 1956 where pleadings are in the nature of evidence unlike in civil suits for determining civil rights of the parties. The must be some flexibility shown by Tribunals and courts of justice in acceptance of defence by the respondent to resist divorce by lawful means of which the written statement is the nucleus.