Dismissed

Sri Amith Prakash v. Smt Reshma Behrani @ Kritu Amith

Karnataka HC20 Sept 2013WP/35533/2013

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition challenging the condonation of delay in a family court miscellany. The judge held that the lower court was justified in condoning the delay given the submissions on substantial justice and allowed the main petition to proceed.

What did the court decide?

The writ petition stands disposed of. The petitioner's contentions are left open to be urged in the main petition.

Sri Amith Prakash Vs Smt Reshma Behrani @ Kritu… — Matrimonial and Divorce | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 20^TH DAY OF SEPTEMBER 2013

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BEFORE

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THE HON’BLE MR. JUSTICE A S BOPANNA

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WRIT PETITION No.35533/2013 (GM-FC)

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Between:

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Sri Amith Prakash S/o Sri L Prakash Aged about 32 years No.S-2, 8/1, Habitat North Side 17^th 'A' Cross Malleshwaram Bangalore – 560 055

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… Petitioner

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(By Sri L Prakash, Adv.)

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And :

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Smt. Reshma Behrani @ Kritu Amith D/o Smt. Bharati Beherani Major, No.A-6, 103 Mirchandani Palms Pimpri Colony, Rahatani Pune- 411 027 … Respondent

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This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, with a prayer to quash the impugned order on I.A.2 dated 10.07.2013 on the file of the 1^st Additional Family Judge, Bangalore in Misc. No.86/2011, Vide Anx-J.

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This Writ Petition coming on for Preliminary hearing in 'B' group, this day, the Court made the following :

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O R D E R

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The petitioner is before this Court assailing the order dated 10.07.2013 passed on I.A.No.2 in Misc.Case No.86/2011 impugned at Annexure-J to the petition.

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The petitioner herein had instituted a petition seeking dissolution of marriage in M.C.No.2090/2010. The respondent herein who is the wife of the petitioner was impleaded as the respondent to the said petition. She had been set ex-parte and thereafter the final order was passed in M.C.No.2090/2010 on 15.04.2011.

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The respondent herein who subsequently came

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to know about the order has filed a Misc. Petition in Misc.No.86/2011 seeking that the order passed in M.C.No.2090/2010 be recalled and an opportunity be granted to contest the petition. Since there was delay in approaching the Court below, an application under Section 5 of the Limitation Act was also filed seeking condonation of delay which was numbered as I.A.No.2.

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The Court below on considering the rival contentions with

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regard to application for condonation of delay has allowed the application and the delay has been condoned. As a consequence of the same, Misc.Petition No.86/2011 would now arise for consideration on merits. The petitioner herein claiming to be aggrieved by the said order of condonation of delay is before this Court.

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Learned counsel for the petitioner would contend that the respondent despite being aware of the said proceedings, more particularly when the address of her uncle had been given and it is also indicated in the petition itself that she used to collect all postal material once in a week was obviously aware of the petition but had deliberately avoided to appear in the petition. In that circumstance, it is contended that despite being aware she had not chosen to contest. Presently, even though respondent is aware that subsequent to the order passed in M.C.No.2090/2010, the petitioner herein has contracted another marriage, only with an intention of harassing the petitioner, Misc. Petition has been filed.

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The case of the petitioner is also that the

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condonation of delay should not be done lightly as the rights of the parties would be affected and therefore the Court below was not justified. In that regard, the learned counsel has taken me through the order passed by the Court below.

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Having considered the contention put forth, I

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have perused the order passed by the Court below. A perusal of the same would indicate that the Court below in fact has referred to these aspects of the matter and the explanation put forth by the respondent herein that passing of the decree came to her knowledge only on 21.06.2011, it was accepted insofar as the condonation of delay is concerned. In that regard, the Court below in fact has also taken note of the decisions which were cited by both the parties on the aspect relating to condonation of delay. There can be no doubt whatsoever that the position of law relating to condonation of delay is that when the third parties rights are effected or the position is altered, condonation of delay could not be done lightly.

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In the instant case, even though the petitioner contends that he has contracted marriage subsequent to the grant of decree, what is also to be kept in view is that if the respondent had a right to remain as a wife of the petitioner, that right also cannot be treated lightly by an ex-parte order to dissolve the marriage. In any event, these are aspects which would require consideration when Misc.Petition No.86/2011 itself is taken into consideration on merits. The question is in that circumstance whether the condonation of delay is justified.

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To the said extent, after having noticed the decisions, the Family Court has also taken into consideration that when substantial justice and technical view are pitted against each other, substantial justice should prevail and in any event, if an ex-parte judgment is allowed to operate only on the ground of delay, certainly, the right of the respondent would be affected. In any event, when the respondent has put forth certain contentions for remaining absent in the main proceedings

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and the petitioner herein is seeking to establish that she had knowledge of the proceedings as the notices had been served on the address of her uncle as per her admission, those are matters which would be considered in the main petition.

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To the extent of condonation of delay, certainly, the Court below was justified in considering the same as a sufficient cause and the law in that regard relating to liberal construction has also been properly applied in the case where certain rights of the respondent is also to be decided. In that view of the matter, I see no reason to interfere with the impugned order. All contentions of the petitioner are left open to be urged in the main petition before the Court below.

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The petition stands disposed of accordingly.

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Sd/-

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JUDGE

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hrp/bms

Sri Amith Prakash v. Smt Reshma Behrani @ Kritu Amith

Case brief

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What did the court decide?

Sri Amith Prakash v. Smt Reshma Behrani @ Kritu Amith

Case brief

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