The High Court dismissed the husband's writ petition challenging the Family Court's order setting aside an ex parte divorce decree. The Court found that the husband had suppressed the wife's actual address in Goa and obtained notice by substitute service despite constant communication, justifying the delay condonation.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO.13214 OF 2017(GM-FC)
BETWEEN:
AVIN CHANDRAN, S/O. MR. SWAMINATHAN, AGED ABOUT 36 YEARS, R/AT NO.62/A, 6TH C CROSS, 2ND MAIN ROAD, MANORAYANAPALYA, R.T.NAGAR POST, BENGALURU-560 032.
…PETITIONER
(BY SRI. G. SANJAY, ADVOCATE)
AND:
Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA
USHA KUMAR @ USHA PILLAI, D/O. MR. P. KUNJUPILLAI, AGED ABOUT 35 YEARS, R/O. FLAT NO.2, SECOND FLOOR, BUILDING D2, QUADIRA PLAZA, HAVERI-CURTI, PONDA, GOA-403 401.
…RESPONDENT
(BY SRI. JAMES P. ARUN KUMAR, ADVOCATE)
THIS WP FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN MISC.NO.126/2013 ON THE FILE OF THE V ADDL. PRINCIPAL JUDGE, FAMILY COURT, BANGALORE VIDE ANNEX-A AND QUASH THE SAME BY THE ISSUE OF A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION, AS THE CASE MAY BE, HOLDING THAT THE ORDER IMPUGNED DATED 22.02.2017 IS ILLEGAL AND UNJUST AND CONTRARY TO THE LAW LAID DOWN BY THE HON'BLE SUPREME COURT OF INDIA AND ETC.
THIS PETITION, COMING ON FOR DISMISSAL, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the order passed in I.A.No.3 M.C.No.126/2013 on the file of the V Addl. Principal Judge,
Family Court at Bengaluru dated 22.02.2017, the husband is before this Court. The parties are referred to as husband and wife for the sake of convenience.
NC: 2024:KHC:15523 WP No. 13214 of 2017
started from 01.04.2013, it was agreed that the husband would come to Goa to spend time with the daughter. However, the husband and his family started avoiding the wife and the child and they stopped even calling through phone. In May 2013, the wife called the husband and informed that the child has to be taken to the eye hospital for checkup. The husband informed the wife to take the child to any hospital in Goa itself and not to come to Bangalore. The mother-in-law informed the wife that the husband had taken the divorce and had re-married. Then
the wife sent an e-mail asking for a copy of the divorce. Then she came to Bangalore and obtained a certified copy on 21.06.2013. On the perusal of the order, in M.C.No.833/2010 dated 01.10.2012, she came to know
that she was placed exparte and divorce was granted. Then she had come up with an application i.e., I.A.No.3 under Section 5 of the Limitation Act to condone the delay in filing the petition stating that for all these reasons, she could not appear before the Court below as she had not received notice and once she came to know that the
NC: 2024:KHC:15523 WP No. 13214 of 2017
exparte decree of divorce is obtained, she had
immediately filed this application seeking to condone the delay and to set aside the exparte divorce decree.
36 to show the presence of mother of the wife with both
the wife and husband. She also got marked e-mails between herself and husband from 30.08.2012 till 16.06.2013 which shows that they were in constant communication through e-mails, phone and personal
meets. She also got marked the photographs of her brother with her husband and parents as per Ex.P.38 and BSNL landline phone bill and receipt as per Ex.P.39 and 40 and also marked speed post acknowledgement and ordinary post receipts as per Ex.P.41 to 43 to show that
the letters were delivered to her address at Goa. The Court below had also observed that the husband had admitted that his daughter is born at Goa and he had also admitted the photographs at Goa which are marked at Ex.P.6 to 9, which were taken when he had been to Goa to
see his daughter after the second marriage. He admits that the wife is the resident of Goa and he resides there
even prior to the marriage, but he says that he do not know her residential address at Goa. He admits that he and his wife were residing in own house of the husband at
NC: 2024:KHC:15523 WP No. 13214 of 2017
Bangalore, but states that he do not know whether the wife had sold the said house. He also admitted the e- mails.
NC: 2024:KHC:15523 WP No. 13214 of 2017
petitioner/husband submits that when he had taken all possible steps and served the notice, no grounds are made out by the wife for setting aside the exparte order or to condone the delay in filing the said application. It is submitted that the Court below without any basis had set aside the order and it is further submitted that the husband is suffering from liver cancer and if this Court directs both the parties to appear for conciliation, to explore if there is any scope for settlement.
this Court. It is submitted that the husband is being in contact with the wife, had not disclosed about the pending matter and had taken out notice by way of substitute service which was not came to the knowledge of the wife as such she could not appear before the Court below and the Court below had passed the reasoned order and there are no grounds to interfere with the same.
side, perused the entire material on record. Even after
filing the divorce petition, the evidence on record clearly discloses that the husband was in constant touch with the wife which is admitted by the husband and even the other evidence on record shows that right from the year 2005, the wife is staying in Goa and husband had been visiting them and also he was constantly in touch with the wife through e-mails, but unfortunately in the cause-title the address of Bangalore is mentioned and he had not disclosed all these aspects before the Court below and he
had taken the notice by way of substituted service. Considering all these aspects the Court below had rightly allowed the I.A. and set aside the exparte decree of divorce and condoned the delay in filing the petition. In fact, from the husband side there appears to be a clear suppression of facts before the Court below. The Court below had also observed that though the wife had filed the application to initiate criminal action against the husband as per Section 340 R/w 34 of IPC., but without the
NC: 2024:KHC:15523 WP No. 13214 of 2017
evidence on that aspect, no criminal proceedings can be ordered. Considering the conduct and the manner in which
the exparte decree is obtained, the Court below is perfectly right in allowing the I.A. and this Court finds no reasons to interfere.
main petition shall be disposed off as expeditiously as possible but not later than six months.
SD/JUDGE
List No.: 1 Sl No.: 27
BN
1 issue framed by the court
Whether the Family Court rightly condoned the delay and set aside the ex parte divorce decree where the husband had suppressed the wife's actual address?
1 provisions across 1 enactments
Avin Chandran
Usha Kumar @ Usha Pillai
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
