IMPORTANT POINT
The court emphasized the liberal interpretation of applications under Order 9 Rule 13 of the Code of Civil Procedure and considered the social and emotional aspects of the Bengali community in reaching its decision.

JUDGMENT :

Shampa Sarkar, J.

1. The revisional application arises out of an order dated June 20, 2022 passed by the learned Additional District Judge, Fast Track 1st Court, Lalbagh, Murshidabad in Misc. Case No.01 of 2021. The Misc. case arose out of Matrimonial Suit No.133 of 2014. By the order impugned, the learned Court allowed the Misc. Case and set aside the ex parte decree. The Matrimonial Suit No. 133 of 2014 was restored to its original file and number. The learned Court allowed an application under Section 5 of the Limitation Act for condonation of delay in filing the Misc. Case as also the Misc. Case, by the same order, which has been impugned before this Court.

2. The petitioner is the husband. The petitioner has challenged the said order on the following grounds:-

a) The learned Court failed to assign the reason for setting aside the ex parte decree and in allowing the Misc. case.

b) The learned Court did not consider the fact that the summons of the matrimonial suit were duly served, but the wife failed to contest the suit.

c) The basic grounds on which an application under Order 9 Rule 13 of the Code of Civil Procedure could be allowed, were, non-service of summons and/or sufficient cause owing to which the party was prevented from contesting the suit.

d) The wife had failed to satisfy the existence of the above factors with cogent evidence before the learned Court, which was overlooked by the Court. The summons were sent to the parents’ house of the opposite party where she was residing with her minor child. The service return before the learned Court reflected that the AD card was duly signed.

3. Ms. Shohini Chakrabarty, learned Advocate appearing on behalf of the petitioner drew the attention of the Court to the order passed by the learned Judge. According to Ms. Chakrabarty, the factors which persuaded the learned Judge to condone the delay and allow the Misc. Case were mainly the Judge’s social perception of a middle class Bengali family. The learned Judge proceeded with an erroneous presumption that in a situation like the present one, not only the wife should have been informed about the husband’s inclination to separate from her and obtain divorce, but the family of the wife and other relatives should have also been made aware before a drastic step like divorce was taken by the husband. Ms. Chakrabarty further submitted that the application for condonation of delay and the Misc. Case could not have been disposed of at the same time, by a single order.

4. Moreover, the Court also erred in presuming that if the wife received summons of a suit for divorce filed by husband, it was impossible for her to ignore such an aggressive step taken by the husband. She was bound to contest the proceeding, especially when the fate of a minor girl child was also involved.

5. Ms. Chakrabarty further contended that after the decree was passed and the period for filing the appeal was over, the petitioner had remarried and a child has been born from the said marriage.

6. Under such circumstances, setting aside the ex parte decree and restoration of the matrimonial suit to its original file and number was unjust, unfair and had caused irreparable loss and injury to the petitioner.

7. According to Ms. Chakrabarty, the opposite party was all along aware of the proceeding. She kept quiet and waited for the decision of the Court. Upon expiry of the period for preferring the appeal, she filed the application for setting aside the decree, only to harass the petitioner and to extract money from him. She had abandoned the petitioner with her child long time ago and did not have the intention to reside with the petitioner. Her sole purpose was to disturb his marital peace and also create a situation of unpleasantness. The averments in the application for setting aside the ex parte decree would indicate that the reasons assigned by her for not attending the Court when the decree was passed, were not convincing. It was unbelievable that two days af