1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR First Appeal No.345 of 2007 -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Memoranda of Coram, appearances*, Court's orders or directions : Court's or Judge's orders and Registrar's orders. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM : J.P.Devadhar and B.P.Dharmadhikari, JJ. DATE : June 25, 2007. Heard Mr. P.D.Sathe, Adv. for the Appellant and Mr.Tapas, Adv. for the respondent. By this appeal, the judgment dt.27.2.2007 delivered by the Family Court No.4, Nagpur in MJC No.49 of 2006 refusing to set aside the ex-parte decree passed in P.A.124/2006 is challenged. The Family Court has found that said MJC was filed belatedly and there was no reasonable or just ground explaining said delay. The Family Court has also extracted report of the Bailiff in which he has stated that she (present petitioner) did not accept the notice and misbehaved. He further contends that, on account of illiteracy all this has happened. He further states that the appellant was also unwell at the relevant time. He therefore, sates that the important issue like divorce has been decided without giving opportunity to the appellant. Mr. Tapas, on the other hand, states that the reasons put- forth are after thought and he points out the judgment delivered by 2 the Court below to contend that there were no such reasons at that time. He further argues that the appellant is only trying to harass the present respondent and he states that the proceedings u/s. 125 of the Code of Criminal Procedure filed by her were also dismissed in default. We have perused the paper book of present appeal with the assistance of both the counsel. We find that on record there was medical certificate issued by the Medical Practitioner which certifies that she was suffering from some ill-ness from 2.6.2006 to 10.6.2006. Further perusal of the judgment also reveals that the Court below has been carried away by the observations in Bailiff's report. In these circumstances, we find that the Court below has erred in not looking into the fact that it was a dispute between the husband and wife and the decree delivered ex-parte was decree for divorce. We are not in a position to hold that the appellant has acted with malice in the matter. In the circumstances, we condone the delay and also set aside the ex- parte decree of divorce dt. 14.7.2006. However, it is made clear that PA-124 of 2006 restored to the file of Family Court for grant of divorce filed by the present respondent shall be decided as early as possible and in any case within a period of four months from the date of communication of this order. It is further made clear that the appellant has agreed before us not to claim any interim maintenance during pendency of said proceedings before the Family Court. In fact, in view of said acceptance and statement made by the learned counsel for the 3 appellant, we have agreed to set aside the ex-parte decree against the appellant also in order to give one more fair chance to the present appellant to contest the matter on merits. The judgment delivered on 27.2.2007 by the Family Court in MJC No.49 of 2006 is hereby quashed and set aside. Said MJC No. 49/2006 is allowed. Petition No.124 of 2006 is restored back to the file of Family Court for its decision in accordance with law after giving due opportunity to the present appellant to file Writ Petition and contest the matter. The appellant to file her Written Statement within 15 days from today and thereafter, Court below shall proceed further and decide the PA 124/06 as early as possible and in any case within a period of 3 ½ months. Rule is made absolute accordingly. However, in the circumstances of the case, there shall be no order as to costs. - JUDGE JUDGE ssj