IN TE COURT OF HON’BLE FAMILY COURT JUDGE, THANE, AT

THANE

A PETITION 47 OF 2017

Shri. Abhay Ranganathan Saeed             ….Petitioner

Versus

Smt. Rupali Abhay Saeed                       ….Respondent

Application on behalf of the Respondent,

seeking set aside no written statement
order dated 06.06.2019.

MAY IT PLEASE YOUR LORDSHIP:

1.   The Petitioner has filed the present case for divorce under
section 13(1)(ia) of Hindu Marriage Act, 1955, and the matter was
kept for filing of written statement of the Respondent but due to
some unavoidable circumstances the Respondent failed to file her
written statement on the said petition hence, on 06.06.2019 this
Hon’ble Court was pleased to pass the following order:

“90 days statutory period has lapsed, Respondent has failed to file
W.S. Petitioner is therefore directed to proceed without W.S.”
 
2.   The Respondent states that non-filing of the written statement to
the Petition was neither intentional nor willful, but for a sufficient
reason. The Respondent’s mother who is 55 years old suffering from
various ailment met with an accident in the state of Gujarat, and due
to immense pain in her knees she was admitted BITC Super
Speciality Hospital, Bopal ICU & Trauma Centre from 02.05.2019 to
09.05.2019  and after discharge the concerned doctor advised her to
rest for 3 weeks and the Respondent is the only one with her, The
Petitioner was taking care of her mother, at the entire time she was
in Gujarat with her mother and due the sudden accident she could
not provide the details to her advocate to file her written statement.
 
3.   The Respondent’s mother was on bed rest for more than 6
months, she was not even capable to stand and walk by herself, the
Respondent was taking care of her, as due to financial issues her
family not afford a nurse for her mother. Due to the aforesaid
circumstances, the Respondent had not appeared before this Hon’ble
Court. Hereto annexed and marked as Exhibit- A is the copies of
medical certificates of Respondent’s mother issued by the hospital.

4.   Till the time Respondent came to know about the aforesaid order
of no W.S. the Hon’ble Prime Minister had announced the nationwide
lockdown on the outburst of Noval Corona Virus and restricted the
movements of the citizens, hence there is a delay on filing of written
statement of the Respondent.

5. Further, the Respondent was under impression as her transfer

application being No. 1362 of 2018 is pending before the Hon’ble
Bombay High Court, hence the present matter will not proceed
further as per the judgment of Kishor s/o. Bhikansingh Rajput
Vs. Preeti w/o. Kishor Rajput, Writ Petition No. 7502 of 2006 the
Hon’ble High Court of Bombay held that:

“Normally when this Court is ceased of the matter, it is

expected of the subordinate courts to stay their hands
away. It is difficult to understand as to what was an
alarming urgency to proceed further and dismiss the
petition when the learned Judge of the Family Court was
very well aware that the order dated 15th September
2006 was challenged before this Court by the present
petitioner. No doubt, that the learned Family Court is
right in observing that there was no stay by this Court.
But as a matter of propriety and when the learned Judge
was very much aware about pendency of the petition
before this Court, the learned Judge ought to have
stayed his hands away and waited till further orders to
be passed by this Court. In that view of the matter, I am
inclined to allow the petition”. 

6.   That the absence of the Respondent and non filing of Written
Statement was neither intentional nor willful, but for the sufficient
reason hereinabove stated. In the interest of justice the Respondent
prayed that the no W.S. order passed by this Hon'ble Court on
06.06.2019 may be set-aside and the Respondent is permitted to file
her written statement on the above-mentioned petition for divorce
so that the substantial dispute involved in the Petition can be
adjudicated upon on its merit by this Hon'ble Court. No harm or
prejudice will be caused to the Petitioner if no written statement
order dated 06.06.2019 is set aside by this Hon'ble Court.

 
7.   In the case of Kailash v. Nanhku, (2005) 4 SCC 480, the
Supreme Court has held that even the 90 days' period mentioned in
Order 8 Rule 1 of CPC is directory and not mandatory since in a
given case the defendants may face extreme hardship in not being
able to defend the suit only because he had not filed written
statement within a period of 90 days, though it was also held that
the defendants may be permitted to file written statement after the
expiry of period of 90 days only in exceptional situation.
 
8.   Further, in the case of Continental Transport Organization
Pvt. Ltd. V. Icici Lombard General Insurance Co. Ltd. [Civil
Appeal No. 9836 of 2010, decided on 22.11.2010] the Supreme
Court observed that: "In the present case, the learned Single Judge
did not even bother to advert to the law laid down in Kallash v.
Nanhku and the Division Bench refused to interfere with the order
only on the ground that application for condonation of delay was
filed after a long time gap. In our opinion, this could not be made a
ground Nor declining to entertain the written statement which was
filed with a short delay of 6 days."
 
9.   In the case of Salem Advocate Bar Assn. v. Union of India,
(2005) 6 SCC 344, the Supreme Court has interpreted the above
Rule 1 with the help of the above Rule 10 of Order 8 of the CPC, in
the following words:
“21. In construing this provision, support can also be had from
Order 8 Rule 10 which provides that where any party from
whom a written statement is required under Rule 1 or Rule 9,
fails to present the same within the time permitted or fixed by
the court, the court shall pronounce judgment against him, or
make such other order in relation to the suit as it thinks fit. On
failure to file written statement under this provision, the court
has been given the discretion either to pronounce judgment
against the defendant or make such other order in relation to
the suit as it thinks fit. In the context of the provision, despite
use of the word “shall”, the court has been given the discretion
 to pronounce or not to pronounce the judgment against the
defendant even if the written statement is not filed and instead
pass such order as it may think fit in relation to the suit. In
construing the provision of Order 8 Rule 1 and Rule 10, the
doctrine of harmonious construction is required to be applied.
The effect would be that under Rule 10 Order 8, the court in its
discretion would have the power to allow the defendant to file
written statement even after expiry of the period of 90 days
provided in Order 8 Rule 1. There is no restriction in Order 8
Rule 10 that after expiry of ninety days, further time cannot be
granted. The court has wide power to “make such order in
relation to the suit as it thinks fit”. Clearly, therefore, the
provision of Order 8 Rule 1 providing for the upper limit of 90
days to file written statement is directory. Having said so, we
wish to make it clear that the order extending time to file
written statement cannot be made in routine. The time can be
extended only in exceptionally hard cases. While extending
time, it has to be borne in mind that the legislature has fixed
the upper time-limit of 90 days. The discretion of the court to
extend the time shall not be so frequently and routinely
exercised so as to nullify the period fixed by Order 8 Rule 1.”

 
10.   In the case of Atcom Technologies Ltd. v. Y.A. Chunawala
and Co., (2018) 6 SCC 639, the Supreme Court has reiterated the
legal principle laid down in the aforesaid case of Salem Advocate
Bar Assn. that the maximum time period of 90 days for the
purposes of filing of the written statement can be extended in
exceptional cases. It was held that in such a situation, onus upon the
defendant is of a higher degree to plead and satisfactorily
demonstrate a valid reason for not filing the written statement within
thirty days.
 
11.    In the recent case of Desh Raj Vs.
Balkishan (D) Through Proposed LR Ms. Rohini,
CIVIL APPEAL NO.433 OF 2020, the Hon’ble Supreme Court of India
was pleased to set aside the No written statement order and allow
the Applellant to file written statement.
 
12.    It appears from the aforesaid judgement of the Supreme
Court that the maximum time period of 90 days for filing the written
statement mentioned in Order 8 Rule 1 is only directory and not
mandatory. This implies that in certain exceptional situations, the
court has the power to extend the aforesaid maximum period of 90
days for the purposes of filing of the written statement by the
defendant. 
 
13.     It is, therefore, most respectfully prayed that:
 
a.    this application may kindly be allowed and the no
written statement order dated 06.06.2019 passed by this
Hon'ble Court may kindly be set aside.

b.   the Respondent may kindly be allowed to file her

written statement on the Petition for divorce filed by the
Petitioner in the interest of justice.

c.    Such other orders may kindly also be passed as

deemed fit and proper in the facts and circumstances of
case. 

Filed in Thane on 26th day of November, 2020

Respondent

Adv. for the Respondent