This order allows an application condoning a 218-day delay in filing a matrimonial appeal. The High Court noted the Family Court failed to issue notice to the mentally ill applicant before passing an ex-parte decree of nullity.
Interlocutory application for condonation of delay allowed; appeal to be registered and listed.
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GAHC010260042019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil) No.3633 of 2019 In Mat. Appeal No.15513/2019 (Filing Number)
SMTI. MANALISHA BEZBARUAH D/O- RAM MOHAN BEZBARUAH, R/O- VILL- JOWARDI, P.S. BELSOR, P.O. KAITHALKUCH, DIST- NALBARI, ASSAM
VERSUS
SRI BIJU BEZBAROOAH
S/O- LT KARUNA BEZBAROOAH, R/O- BIRUBARI NIZARA PAR, P.O. GOPINATH NAGAR, P.S. PALTAN BAZAAR, DIST- KAMRUP (M), ASSAM
Advocate for the Petitioner : MR. S K GOSWAMI
Advocate for the Respondent : MR. A K BHUYAN
- B E F O R E -
HON’BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON’BLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 02-12-2020
[N. Kotiswar Singh, CJ (Acting)]
Heard Mr. S.K. Goswami, learned counsel for the applicant. Also heard Ms. N. Choudhury, learned counsel appearing for the respondent.
2. The present application has been filed for condoning the delay of 218 days in preferring the connected Mat. Appeal against the order dated 17.12.2018 passed by the learned Principal Judge, Family Court No.1, Kamrup in F.C. (Civil) No.272/2018 (Shri Biju Bezbarooah -Vs- Smti. Manalisha Bezbaruah).
3. By the aforesaid impugned order dated 17.12.2018, the petition filed by the husband was allowed granting the decree of nullity of the marriage on the ground that
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consent of the petitioner/husband (respondent herein) was obtained by fraud by concealing the mental condition of the opposite party (applicant herein) before the marriage. The said impugned order was passed ex-parte as the opposite party (applicant herein) was absent.
4. It is the case of the applicant that in the Family Court she was not represented by any counsel as normally appearance of counsel is not allowed unless specifically allowed by the Court and she did not have the means to engage a counsel in Guwahati. After filing of the aforesaid case by her husband, the matter was referred to the Counsellor of the Family Court and she was under the impression that after the proceeding of the conciliation was over, which ended in failure, she would be informed about the next date of hearing before the Family Court. However, according to her, she was not informed and the matter was proceeded ex-parte by the Family Court resulting in the aforesaid impugned order dated 17.12.2018. It is the case of the applicant that the applicant came to know about passing of the ex-parte decree during a proceeding initiated by her for grant of maintenance in the Court of the learned Chief Judicial Magistrate, Nalbari. On coming to know about passing of the decree during the pendency of the said proceeding before the Chief Judicial Magistrate, Nalbari, the applicant collected the certified copy of the order and after consultation with the counsel, filed this appeal resulting in a delay of 218 days.
5. The explanation furnished before this Court in short is that the applicant being without any source of income was not represented by any lawyer in the Family Court and because of her lack of knowledge of the procedures involved in the Family Court and as she was also under the impression that she will be duly intimated of the proceeding before the Family Court, she could not appear in the Family Court, resulting in the aforesaid passing of ex-parte decree.
6. This application, however, has been vehemently opposed by the respondent /husband. It has been noticed that though the respondent had sought time on 13.02.2020 for filing objection, no such objection has been filed till date. However, it has been submitted on behalf of the respondent that the applicant has not come with clean hands inasmuch as she has not disclosed the correct state of affairs about the proceedings before the Family Court and it was her negligence to pursue the case before the Family Court, which resulted in the passing of the ex-parte decree.
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7. We have perused the pleadings and given our anxious thought over the matter. The main ground for granting the decree of nullity was that the applicant was suffering from mental illness, which was not disclosed to her husband before her marriage. Though this medical condition has been denied by the applicant herein, if the said plea was taken by the husband before the Family Court, perhaps the Family Court could have been more cautious in proceeding with the matter in an ex-parte manner. We have gone through the order sheets of the Principal Judge of the Family Court No.1, Kamrup, which is annexed to the memo of appeal for our reference.
It appears that after the matter was referred for conciliation by an order dated 27.04.2018 by the Principal Judge of the Family Court and thereafter, the record was received on 07.07.2018 with the observation that the conciliation had failed. However, it was also mentioned that parties are present and that the Court fixed the next date for appearance for necessary orders on 07.08.2018. Order dated 07.07.2018, however, indicates that the Hon’ble Presiding Judge was on leave on that day. It, therefore, appears that the order was passed by the concerned in-charge Principal Judge. Thereafter, on 07.08.2018 when the matter was taken up, though the petitioner was present, the opposite party was absent. It was again fixed on 03.09.2018 but because of holiday/ bandh on that day, the matter was deferred to 03.10.2018. When the matter was taken up on 03.10.2018 though the petitioner was present, the opposite party was absent. The matter was again fixed on 12.10.2018, on which date the applicant was again absent. On that day, the Court passed an order that the case will be proceeded ex-parte against the opposite party and the next date was fixed on 12.11.2018 for recording of evidence. The matter was again listed on 30.11.2018 for argument, on which date, the opposite party was again absent and consequently, after hearing the petitioner, the impugned decree was passed on 17.12.2018.
8. As mentioned above, the plea of the petitioner/husband seeking decree of nullity was primarily on the ground that the opposite party/the applicant herein, was suffering from mental illness, which fact was not disclosed to the petitioner/husband before the marriage was performed. Thus, the Family Court granted decree of nullity under Section 12(c) of the Hindu Marriage Act, 1955.
9. It has also been submitted by Ms. Choudhury, learned counsel for the petitioner/husband, respondent herein, that the fact that the applicant was suffering from
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mental illness was duly proved by adducing necessary evidences including medical certificates in that regard. In such a situation, when the plea of the petitioner/husband before the Family Court was primarily based on the mental illness of the wife, applicant herein, we are of the view that as a matter of caution, the Family Court ought to have given adequate opportunity to the wife for appearance by issuing a notice to her before proceeding ex-parte. However, the records does not indicate that any such step was taken by the Family Court for informing the respondent (applicant herein), who was allegedly suffering from mental illness, considering also the fact that she was not represented by any lawyer before the Family Court.
10. Perusal of the impugned order also indicates that the petition was allowed on the basis of one affidavit filed by one PW, the husband, and though the case was based on the mental illness and medical documents prescribed by 3(three) doctors were relied on but there is nothing to show that any of the doctors had been examined. Be that as it may, here is the case of the petitioner/husband, which was based on the plea of mental illness of the wife/applicant. The Family Court under such circumstance ought to have made itself wholly satisfied about the reason of non-appearance of an opponent party, applicant herein, who was stated to be suffering mental illness, which we find the Family Court does not seen to have done.
11. Taking a holistic view of the matter, we are inclined to allow this application for condoning the delay in filing the connected Mat. Appeal. Accordingly, the interlocutory application is allowed.
12. Registry is directed to register and number the connected Mat. Appeal and list it accordingly.
JUDGE
CHIEF JUSTICE (ACTING)
Comparing Assistant
2 issues framed by the court
Whether the delay of 218 days in filing the matrimonial appeal should be condoned.
Whether the Family Court exercised due caution before passing an ex-parte decree in a case involving mental illness.
Smti. Manalisha Bezbaruah
Sri Biju Bezbarooah
N. Kotiswar Singh
Manish Choudhury
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
