BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 18.11.2021 PRONOUNCED ON : 30.11.2021 CORAM:

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN and THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN C.M.A(MD)No.390 of 2021 A.S.Bilal ... Appellant / Petitioner / Respondent Vs.

A.Raisa Nasrin ... Respondent / Respondent / Petitioner PRAYER: Civil Miscellaneous Appeal filed under Section 43(1)(c) of the Civil Procedure Code, to set aside the order of the learned Family Court Judge, Sivagangai in I.A.No.5 of 2019 in GWOP No.1 of 2016, dated 23.01.2020 and allow the Civil Miscellaneous Appeal and restore the I.A.No.5/2019 in GWOP.No.1 of 2016 on the file of the Family Court, Sivagangai and direct the trial Court to dispose the petition within stipulated period and without insisting the personal appearance of the appellant except for the necessary hearing.

For Appellant : Mr.A.K.S.Thahir For Mr.S.Muthukrishnan For Respondent : Mr.T.Lajapathi Roy

JUDGMENT

S.VAIDYANATHAN,J.

and DR.G.JAYACHANDRAN,J.

The Civil Miscellaneous Appeal is filed to set aside the order of the learned Family Court Judge, Sivagangai, passed in I.A.No.5 of 2019 in GWOP No.1 of 2016, dated 23.01.2020 and to restore GWOP.No.1 of 2016 on the file of the Family Court, Sivagangai.

2. The appellant herein is the father of the minor girl Aisha Imaya (Date of Birth 07.10.2010). The appellant and the respondent herein got married on 27.12.2009. The female child Aisha Imaya was born to them on 07.10.2010. The marital life entered into turbulent phase, which has lead to dissolution of marriage, in the form of Khula divorce, which is prevalent and acceptable in the Muslim Community. The divorce has come into effect from 21.07.2017. Even prior to this, there has been series of cases filed by the appellant and the respondent against each other and their family members both in the criminal Court as well as in the family Court.

3. The appellant and his father being a Lawyer, practicing at Chennai and there was no dearth of litigation between the parties.

4. Before adverting to the merits of the appeal, the facts, which are essential and relevant, are extracted below:-

(i) The appellant herein filed GWOP.No.1 of 2016, before the Family Court at Sivagangai, seeking custody of the minor child, under Section 7 of the Guardian and Wards Act. When the matter was posted for enquiry on 09.02.2017, 20.02.2017, 01.03.2017, 07.03.2017, 16.03.2017, 23.03.2017 and 24.03.2017, the appellant herein, who is the petitioner in the GWOP did not appear. Therefore, the Family Court, recording the same dismissed the GWOP for default.

(ii) Aggrieved by that, the appellant herein filed a restoration petition with a delay of 118 days before the trial Court. Since his petition to condone the delay was not numbered by the Registry of the trial Court, he preferred a Civil Revision Petition in C.R.P(PD)(MD)No.2294 of 2017, before this Court, seeking a direction to the Family Court, Sivagangai, to number his unnumbered petition and to condone the delay of 118 days in preferring the restoration petition.

(iii) The Learned Judge of this High Court, vide order dated

24.01.2018 found that the condone delay petition was not numbered because the appellant herein, as the petitioner, did not present in person to re-present the application, which is the usual procedures adopted in Family Courts, as prescribed under the Family Courts Act. Therefore, it disposed the Civil Revision Petition in C.R.P(PD)(MD)No.2294 of 2017 filed by the appellant herein on 24.01.2018 with the following directions:-

“7. Therefore, the petitioner is hereby directed to present the papers, before the Family Court, Sivagangai, in person, as per the settled law, within a period of two weeks from the date of receipt of a copy of this order. In such filing, the learned Judge, Family Court, Sivagangai, shall consider and dispose of the same, as expeditiously as possible, in the manner known to law. “

(iv) Thereafter, the delay was condoned, GWOP was restored on file an