Order 8 Rule 1 CPC Only Directory: Allahabad High Court Upholds Family Court Order Permitting Wife To File Written Statement Beyond 90 Days

Recently, the Allahabad High Court has upheld the order of the Family Court granting extension of time to defendant-wife for filing written statement beyond the statutory period of 90 days provided in Order 8 Rule 1 of CPC during pendency of application under Section 24 of the Hindu Marriage Act.Order 8 Rule 1 of CPC provides that a defendant shall file his written defense within 30 days from the receipt of summons. The proviso to Rule 1 provides that the defendant may be allowed to file written statement after a period of 30 days on any other day specified by the Court. However, such period cannot exceed 90 days from the date of receipt of summon. Section 24 of the Hindu Marriage Act provides that any partner, husband or wife, who does not have sufficient independent income to bear the expense of legal proceedings can file an application for such expenses. The Court may grant such expenses considering the income of both parties.Holding that Order 8 Rule 1 of CPC is discretionary in nature, Justice Manish Kumar Nigam held,“The extension of the time sought by the defendant from the court whether within 30 days or 90 days as the case may be should not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. The extension can only be by way of exception and for reasons assigned by the defendant and recorded in writing by the court to its satisfaction.”The Court further held that while allowing the defendant-wife to file the written submissions beyond the statutory period, the Family Court was required to record reasons in writing. Since proper reasons were recorded in writing by the Family Court, the Court held that the order was neither perverse nor against settled principles of law to warrant interference by the High Court under Article 227 of the Constitution of India.Factual BackgroundPlaintiff-petitioner (husband) filed a divorce petition in 2015. Defendant-respondent, wife, filed an application under Section 24 of the Hindu Marriage Act praying for amount of Rs. 25,000/- for expenses of the aforesaid litigation. In 2018, Wife filed an application for delay condonation in filing the written statement. However, the same was objected by the petitioner-husband on grounds that under Order 8 Rule 1 of CPC written statement can be filed within a maximum period of 90 days from the date of receipt of notice. Since more than 2 years had lapsed, the wife had no right to filed the written statement. The Family Court allowed the application of the wife seeking delay condonation and accepted the written submissions. Against this order of the Family Court, petitioner-husband approached the High Court. Counsel for petitioner argued that under Order 8 Rule 1 of CPC no further time could be granted for filing written statement. It was argued that the condonation of delay for more than 2 years by the Family Court was liable to be set aside as it was mandatory for the defendant-wife to comply with the mandatory statutory period of 90 days. Since, no counsel appeared on behalf of the wife, the Court proceeded ex-parte. High Court VerdictPlacing reliance on the decisions of Supreme Court in Salem Advocate Bar Association Tamil Nadu Vs. Union of India, Zolba Vs. Keshao and others, and Desh Raj Vs. Balkishan (D) Through Proposed LR Ms. Rohini, the Court held that Order 8 Rule 1 is discretionary in nature as it gives the power to Trial Court to grant extension of time beyond 90 days to file written statement. “Thus, it is well settled that the provision of Order 8 Rule 1 C.P.C. is discretionary and the trial court in exercise of discretion may permit the defendant to file written statement even after the statutory period of 90 days, as provided by Order 8 Rule 1 of C.P.C. The discretion has to be exercised reasonably for advancement of justice.”The Court observed that the application filed by the wife for maintenance pendente lite remained pending. The Court below had recorded a finding that the wife had duly contested the case and in light of principles of natural justice, she must be given an opportunity to file written statement with a cost of Rs. 1,500/-.The Court further observed that the matter was sent to mediation which failed and thereafter, the defendant-wife had sought more time for filing the written statement. The Court observed that the application for litigation expenses filed by the wife under Section 24 of the Hindu Marriage Act was pending for no fault of her. The Court relied on Sau. Vanita Pravin Gaikwad Vs. Sri Pravin Pundlik Gaikwad where the Bombay High Court had held that a defendant cannot be compelled to file written statement till application filed under Section 24 of the Hindu Marriage Act is decided. The Court observed that the Supreme Court in Aditya Hotels Private Ltd. Vs. Bombay Swadesh Stores Ltd. And others held that reasons must be recorded in writing while granting time extension under Order 8 Rule 1 of CPC. “In the present case, the...

Order 8 Rule 1 CPC Only Directory: Allahabad High Court Upholds Family Court Order Permitting Wife To File Written Statement Beyond 90 Days

Upasna Agrawal

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