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.

2. Both the petitioner and respondent got married on 10.09.2001 at Kollam District, Kerala. Out of the wedlock they are blessed with a daughter on 08.02.2003. The wife had narrated several disputes between the parties. It is stated that the husband used to call the wife and daughter through phone and there was constant e- mail communication between the husband and wife. The husband’s parents and sisters used to call the wife and the daughter. Till April 2013, everything was going on well. During school summer holidays of the year 2013, which 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 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.

3. The husband had resisted the application denying all the allegations levelled therein and stated that the address of the wife given in M.C.No.833/2010 is a correct address. She lived in this address till December 2010 and thereafter she shifted to the new address furnished. It is stated that she sold away the property without informing the petitioner and thereafter went to Goa and he had taken out notice on her by way of substitute service and basing on that the Court below had passed an order whereby an exparte divorce is granted. It is stated that the delay cannot be condoned and the divorce decree cannot be set aside. The Court below by impugned order had observed that the wife had marked encumbrance certificate pertaining to her Goa address from June 2005 till January 2014 to show that she lives in Goa from the year 2005. She also marked Ex.P.Nos.33 to

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