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SHAKEELA BEGUM versus DISTRICT JUDGE BADAUN & ANOTHER

High Court of Judicature at Allahabad

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Shakeela Begum v. District Judge Badaun & Another - WRIT - C No. 47915 of 2003 [2005] RD-AH 6192 (22 November 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                       Court No.38

Civil Misc. Writ Petition No. 47915 of 2003

Shakeela Begum           Vs.      District Judge, Badaun & another

Hon'ble Vineet Saran, J

The dispute in this writ petition relates to the custody of a minor child (son) of the petitioner (wife) and the respondent no. 2 (husband).

Brief facts are that the petitioner and respondent no. 2 were married in the year 1989 and from this wedlock they had two children, one daughter and a son. The petitioner thereafter started living separately alongwith the minor son and the minor daughter remained with the father i.e. respondent no. 2. In the year 1996 since the petitioner claims that she was residing at Delhi, the petitioner filed an application before the Additional Chief Metropolitan Magistrate, Karkardooma, Delhi claiming maintenance, which was contested by respondent no. 2. By order dated 27.5.1999 the respondent no. 2 was directed to pay Rs.400/- per month as maintenance to the petitioner and Rs. 300/- per month to the minor son living with the petitioner. In the said application the petitioner had given her address of Delhi. Then in the year 1999 the respondent no. 2 filed an application in the Court of the District Judge, Badaun for change of custody of the minor son who was living with the petitioner. In the said case, which was registered as Misc. Case No. 6 of 1999, the address of the petitioner Shakeela Begum, who was respondent in the said case, was given of Badaun and not of Delhi where, according to the petitioner, she normally resides. The said case was decreed exparte on 5.5.2002, in favour of the respondent no. 2 and a direction was issued to the petitioner Shakeela Begum to deliver the custody of the minor child to the father i.e. respondent no. 2. On coming to know of the passing of the said order dated 5.5.2000 on 21.12.2001 the petitioner filed an application under Order IX Rule 13 C.P.C. for setting the ex-parte decree dated 5.5.2000 on the ground that the she came to know of the passing of the said exparte decree only on 18.12.2001 when it was being executed and the Police had been searching for her for the custody of the child in question. The said application of the petitioner had been rejected by the District Judge, Badaun on 16.9.2003. Aggrieved by the said orders dated 16.9.2003 as well as the exparte decree dated 5.5.2000 the petitioner has filed this writ petition.

I have heard Sri Anubhav Chandra, learned counsel appearing for the petitioner as well as Sri Rizwan Ahmad, learned counsel appearing for the respondent no. 2. Counter and rejoinder affidavits have been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of at the admission stage itself.

The application under Order IX Rule 13 C.P.C. filed by the petitioner has been rejected on the ground that the petitioner had come to know of the passing of the exparte decree dated 5.5.2000 on 29.11.2000 and since the said application was not accompanied by an application for condonation of delay in filing the said application under Order IX Rule 13 C.P.C., it was liable to be rejected.

The categorical case of the petitioner is that she had no knowledge of the passing of the exparte decree prior to 18.12.2001. It was only when the police had approached her uncle in execution of the decree on 18.12.2001 that she got knowledge of the exparte decree having been passed against her. Immediately thereafter on 21.12.2001 she filed an application under Order IX Rule 13 C.P.C. It has thus been contended that since the application under Order IX Rule 13 C.P.C. can be filed within 30 days from the date of knowledge of the exparte decree, no application for condonation of delay was required to be filed.

The submission of the respondents that the petitioner had got knowledge of the exparte decree on 29.11.2000 because in another case during cross examination she was asked about the pendency of the case to which although she replied in the negative but thereafter because of having been asked such a question she ought to have learnt about the passing of the decree, does not have much force.  

It has not been established by the respondent no. 2 that the petitioner had acquired any definite knowledge of the passing of the decree dated 5.5.2000 prior to 18.12.2001. Even otherwise, the expate decree had been passed because respondent no. 2 had given the address of the petitioner of Badaun whereas the petitioner was normally residing at Delhi, which would be evident from the fact that the petitioner had filed a case in the Delhi Court showing her Delhi address, which had been duly contested by respondent no. 2. As such it cannot be said that the respondent no. 2 had no knowledge of the petitioner residing at Delhi. Even the publication for affecting service was made in the Newspaper published from Badaun and not at Delhi and as such it cannot be presumed that the petitioner had got knowledge of the case filed by respondent no. 2 or passing of the decree. The respondent no. 2 ought to have given the petitioner's Delhi address, if not initially, then at least after the service was not affected on the petitioner. The respondent no. 2 also ought to have brought to the notice of the District Magistrate, Badaun that the other address of the petitioner is of Delhi. Even if the petitioner sometimes used to reside at her Badaun address once after the service was not affected on her at such address given in the application, the respondent no. 2 ought to have informed the Court of her Delhi address also, which was the address she had given in the case filed by her before the Additional Chief Metropolitan Magistrate, Delhi. As such, in my view, the application under Order IX Rule 13 C.P.C. filed by the petitioner ought to have been allowed and the order dated 16.9.2003 deserves to be set aside.

Accordingly, for the reasons given above the order dated 16.9.2003 rejecting the application of the petitioner under Order IX Rule 13 C.P.C. as well as the ex-parte decree dated 5.5.2000 passed by the District Judge, Badaun are hereby quashed. This writ petition stands allowed. No order as to costs.

However, learned counsel for both the parties have submitted that the  Misc. Case No. 6 of 1999 filed by respondent no. 2 before the District Judge, Badaun may be heard and decided on merits expeditiously. Accordingly, a direction is also issued that the said case may be decided by the District Judge, Badaun as expeditiously as possible, without granting any unnecessary adjournments to either of the parties.

Dt/-22.11.2005

PS


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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