AI Structured Summary
Not yet generated for this judgment
Judgment
Sivasubramaniam, J.—By consent of parties, these revision petitions are taken up for final disposal.
These revision petitions have been directed against the orders passed in I.A. Nos. 6469 and 6470 of 1987 in O.P. No. 305 of 1984 on the file
of the VI Assistant Judge, City Civil Court, Madras and I.A. No. 22280 of 1987 in O.P. No. 893 of 1987 on the file of the I Assistant judge, City
Civil Court, Madras. The petitioner in the former two revision petitions and the respondent in the latter revision petition is the husband and the
other party in these revision petitions is his wife. For purpose of convenience, I shall refer the husband as the petitioner and the wife as the
respondent in all these revision petitions.
The petitioner and the respondent were married on 15.9.1976 and a female child was born to them, on 7.9.1978 named Rajalakshmi alias
Ammu. It appears that certain misunderstandings arose between the spouses and they have been living separately eversince the year 1982.
According to the petitioner, the respondent had executed a deed of divorce on 16.7.1982 and left the minor child aged 3 1/2 years in his custody
and eversince then, he has been looking after the child, with love, and affection by providing education, food and cloth.
While so, the respondent filed the petition in O.P. No. 305 of 1984 for divorce and for custody of the minor child and an Ex Parte decree was
passed in favour of the respondent/wife on 20.12.1984. In pursuance of the said decree, the respondent attempted to take custody of the minor
child. At this stage, the petitioner/husband filed the petition in I.A. No. 16275 of 1985 to set aside the EX Parte decree passed in O.P.No. 305 of
1984 and another application in I.A.No. 8053 of 1986 to condone the delay in filing the petition to set aside the Ex Parte decree on the ground
that he came to know about the Ex Parte decree only on 10.8.1985 when the respondent made an attempt to take custody of the child with the
help of the Police. These two applications were posted for hearing on 24.11.1986. But on that date, the petitioner was absent. Therefore the
petitions were dismissed for default, as neither the petitioner nor his advocate was present in Court. On 243.1987, the petitioner filed two
applications in I.A. Nos. 6469 and 6470 of 1987 to condone the delay of 90 days in filing the petitions to restore I.A. Nos. 16275 of 1985 and
8053 of 1986. These applications were resisted by the respondent/wife. The trial Court dismissed the said two applications on 15.9.1987 holding
that there are no sufficient grounds to excuse the delay. As against these orders, the petitioner has filed C.R.P. Nos. 4587 of 1987 and 213 of
1988 respectively.
Meanwhile, on 22.12.1986 the respondent/wife filed W.P. No. 14117 of 1986 before this Court for issue of a writ of Habeas Corpus directing
the husband to produce the minor child aged about 8 years at that time before this Court to enable her to take custody of the child. After a number
of adjournments, the counsel appearing for the husband reported no instructions on 2.11.1987. An order of arrest was issued in the said writ
petition on 2.11.1987 for the production of the child before this Court. Thereafter, he filed the petition in W.M.P. No. 17005 of 1987 for recalling
the warrant. He produced the child before the Court on 1.12.1987, and, therefore, the warrant was recalled and the writ petition itself was
ordered to be posted for final hearing on 14.12.1987. It is stated that the husband was permitted to take back the child until further orders.
After the order of arrest was issued by this Court in the said writ petition, the petitioner husband filed another petition in O.P. No. 893 of 1987
on the file of the I Asst. Judge, City Civil Court, Madras purporting to be an original petition u/s 36 of the Hindu Marriage Act praying for a decree
directing him to keep the child in his custody and to pass an order of injunction restraining the respondent from in any manner interfering with his
custody of the child. Pending disposal of that petition, he filed an interlocutory application in I.A. No. 22280 of 1987 praying for an order of
interim injunction. This was resisted by the wife on the ground that the present petition filed by him was only to defy the orders of the High Court in
the Habeas Corpus petition and that the earlier order passed in O.P. No. 305 of 1984 is a bar for maintaining the latter application filed for the
same relief. However, the trial Court allowed the application on the ground that the objections raised by the wife can be considered at the time of
the final disposal of the main petition. Aggrieved against this order, the wife has preferred C.R.P. No. 183 of 1988 before this Court.
In so far as C.R.P. Nos. 4587 of 1987 and 213 of 1988 filed against the orders in I.A. Nos. 6469 and 6470 of 1987 are concerned, the
petitioner came forward with these applications to excuse the delay of 90 days in filing the petitions to restore the earlier petitions dismissed for
default. According to him, due to certain family problems, he was not able to meet his counsel before 23.3.1987 to file the petitions in time.
According to the wife, the petitioner had adopted a totally indifferent and reckless attitude towards these proceedings at every stage from the
commencement of the proceedings till 20.12.1984 when the Ex Parte decree was passed. The allegation that he could not meet his counsel prior
to the filing of the petition in March, 1987 was attacked as false and the respondent filed Exs. B-1 and B-2 to show that a vakalat was filed on
17.2.1987 itself in the said writ petition, after notice was served on the petitioner. Therefore, it was contended that there was absolutely no ground
for waiting till 24.3.1987 to file the petitions to restore earlier applications. The trial Court proceeded on the basis that each day''s delay in filing the
petitions has not been satisfactorily explained. It is no doubt true that the conduct of the petitioner/husband shows that he was not very diligent in
prosecuting the proceedings. But, however, it is to be noted that there are several proceedings pending between the parties and according to the
petitioner, he was upset with certain family problems. Simply because every day''s delay has not been explained, it cannot be stated as a rule that a
petition to excuse the delay should be dismissed summarily. The question of excusing the delay depends upon the peculiar circumstances of each
case and, therefore, there cannot be any hard and fast rule in such matters. The Court has to see whether a party to the proceedings has been
deliberately committing delay in order to harass the other party or whether he had reasonable cause for not filing the applications in time. Recently
the Supreme Court has held that in the matter of excusing the delay, the Courts need not adopt a strict and rigid rule and all reasonable
opportunities should be given to the parties to put forth their case. Of course, it is a matter which has to be decided by the Court on the facts of
each case and the discretion should be exercised judiciously. Considering the facts of the case, the delay occasioned in this case cannot be said to
be unduly long and in view of the pendency of the writ petition, it cannot be said that the respondent/wife has been put to any irreparable loss.
Considering these aspects of the matter, I feel that the delay should be condoned in order to give an opportunity to the petitioner to prosecute the
earlier applications. Of course, it is open to the trial Court to consider whether the petitioner has got a reasonable cause to restore the earlier
applications dismissed for default. It is open to the trial Court to come to an independent decision on merits taking note of the period of delay and
the Bona Fides in the claim made by the petitioner. The present delay is condoned only to enable the petitioner to prosecute those applications. In
these circumstances, C.R.P. Nos. 4587 of 1987 and 213 of 1988 have to be allowed. But the petitioner is bound to compensate the respondent
for the costs incurred by her in defending these applications.
In the result, C.R.P. Nos. 4587 of 1987 and 213 of 1988 are allowed and the orders passed in I.A. Nos. 6469 and 6470 of 1987 in O.P. No.
305 of 1984 are set aside and the said applications shall stand allowed on condition that the petitioner in these two revision petitions pays a sum of
Rs. 200/- towards costs to the respondent within four weeks from this date, failing which these revision petitions shall stand dismissed.
As regards C.R.P. No. 183 of 1988, the order passed by the Trial Court is unsustainable. As already noticed, the respondent/wife has already
obtained an Ex Parte decree for the custody of the minor child in O.P. No. 305 of 1984 and the petitioner/husband has taken steps to set aside the
Ex Parte decree passed thereon. Due to his own fault, he allowed the petitions to be dismissed for default and, therefore, he was not able to get
any remedy in the earlier petitions. Apart from that, the wife had filed W.P. No. 14117 of 1986 before this Court for the issue of a writ of Habeas
Corpus directing her husband to produce the child before the Court to enable her to take custody of the child. An order was also passed for the
production of the child and in obedience to the said order, the husband had produced the child before this Court to escape the warrant of arrest. In
those circumstances, it is highly improper for the petitioner to file another original petition in O.P. No. 893 of 1987 seeking custody of the minor
child and praying for an order of injunction against the wife. The trial Court, though noticed the pendency of the writ petition before this Court and
the earlier Ex Parte decree obtained by the wife, granted an order of interim injunction in favour of the petitioner solely on the ground that the
objections raised by the wife regarding the maintainability of the petition can be decided at the final disposal of the petition. I fail to understand how
such an important issue can be relegated to a later stage when the very maintainability of the application was questioned and the pendency of the
writ petition was brought to the notice of the trial Court. The learned Judge ought to have noted that the very prayer in the writ petition is to get the
custody of the child and he must have been aware that the writ petition was directed to be posted for final disposal on 14.12.1987. If an
elementary care had been taken, the trial Court would have realised that the impugned order of injunction would virtually prevent this Court passing
any orders in favour of the wife in the said writ petition. It is significant to note that the impugned order of injunction passed by the trial Court is not
ordered to be in force only till the disposal of the writ petition. But on the other hand, it is intended to remain in force till the disposal of O.P. No.
893 of 1987. Learned Counsel for the husband relies upon the provisions in Section 26 of the Hindu Marriage Act, 1955 and contends that the
Court May, from time to tome, pass such interim orders and make such provisions in the decree as it may deem just proper with respect to the
custody, maintenance and education of minor children, consistently with their wishes, wherever possible. It is no doubt true that the Court has been
invested with the powers such orders and make such provisions which it may deem just and proper with respect to the custody, maintenance and
education of minor children and that the welfare of the minor children is the paramount consideration in such cases. This provision is intended to
enable the Court to pass suitable orders from time to time to protect the interests of the minor children. But that does not mean that after the final
order is passed in an original petition filed for the custody of the minor child, the other party can file any number of fresh original petitions ignoring
the earlier order passed by the Court. Any such fresh application must be filed only to revoke, suspend or vary the earlier order. It does not enable
a party to the earlier petition to ignore the order passed therein and file a fresh petition, for a similar relief quite contrary to the one which was
passed in the earlier petition. The prayer must be confined for revoking, suspending or varying the earlier order. Therefore, the proper course for
the petitioner/husband is only to ask for modification of the earlier order as contemplated u/s 26 of the Act. As a matter of fact, it is stated in the
affidavit filed in support of the stay petition in this Court that the petitioner has moved such a petition also. While so, it is understandable how an
injunction of this nature can be asked for at this stage in such a was as to defeat the valid orders passed in the earlier application. It is only an
attempt to circumvent the Ex Parte decree passed in (O.P. No. 305 of 1984. If such a procedure is allowed, there will not be any finality to any
proceedings before the Court.
Learned Counsel for the husband relied on the decision of this Court in A.R. Munuswamy Rajoo Vs. Hamsa Rani, in support of his contention.
It was a case where a wife filed an interlocutory application u/s 26 of the Hindu Marriage Act, 1955 for maintenance after the original petition filed
by the wife u/s 9 of the Act was disposed of. Before the trial Court, no objection was taken that such an application was not maintainable. But
before the High Court, it was contended that an original application ought to have been filed. In negativing the said contentions, Maharajan, J., held
that it is only a procedural error which does not go to the root of the matter. In this connection, it has to be noted that according to the rules framed
by this Court under the Hindu Marriage Act, Rule 1 says that certain proceedings under the Act shall be initiated by original petitions and Rule 2
says that every other proceedings subsequent to the petition shall be an interlocutory application. These rules have been referred to in the said
judgment. Therefore, this decision is of no help to the case of the petitioner/husband and on the other hand, it will go to show that it would be
against the contentions raised on behalf of the petitioner/husband. In view of this position, the order passed by the trial Court granting an injunction
in favour of the husband cannot be sustained. Therefore, C.R.P. No. 183 of 1988 is allowed and the order passed by the lower court is set aside.
No costs.
As regards the custody of the minor child, it is to be noted that this Court is in Seisin of the matter in W.P. No. 14117 of 1986. After the child
was produced before this Court, this Court has given the custody of the child to the husband without passing any formal orders to that effect. This
has been done because the main writ petition itself was directed to be posted for final disposal within a short time. It is open to the parties to move
for appropriate orders in the said writ petition.