L. Narasimha Reddy, J.
1. Petitioner is the wife of the respondent. Their marriage was performed on 7-3-2000. The respondent filed H.M.O.P. No. 80 of 2003 in the Court of Senior Civil Judge, Vizianagaram, under Section 12 of the Hindu Marriage Act, 1955 (for short the Act'), against the petitioner. He alleged that the petitioner became unconscious, on the next day of marriage itself, and that the fact that she was suffering from rheumatic heart disease was not known to him. Without specifying any independent ground, but citing Section 12 of the Act, he sought for annulment of the marriage. At the instance of the petitioner, the O.P. was transferred to the Family Court, Hyderabad and re-numbered as O.P. No. 742 of 2004. Through its order, dated 22-12-2005, the Family Court decreed the O.P. The petitioner filed an application to set aside the said decree. Since there was delay of 75 days in filing the same, she also filed I .A. No. 376 of 2006, under Section 5 of the Limitation Act, for condonation of the delay.
2. The petitioner pleaded that she had to travel to the places outside the State, and that she suffered ill health at the relevant point of time. The respondent opposed the application. Through its order, dated 7-9-2006, the learned Family Judge dismissed the application. Hence, this Civil Revision Petition.
3. Smt. Anita Ahuja, the learned Counsel for the petitioner submits that though the petitioner had filed relevant documents, to prove that she was out of station and unwell, at the relevant point of time, the Family Court dismissed the I.A, by proceeding on hyper technical grounds. She contends that the Family Court itself was not sure, as to whether the decree passed by it on 22-12-2005 was ex parte in nature, or not. It is also her case that the decree was passed, on a ground which was not even pleaded and which cannot be sustained in law.
4. Sri Ganshamdas Mandhani, the learned Counsel for the respondent, on the other hand, submits that it is the petitioner, who got the O.P. transferred to the Family Court, Hyderabad, to suit her convenience, and it is in the revision filed by her, that this Court gave a direction for early disposal of the O.P.; and despite the same, she remained indifferent, in the matter of participation in the proceedings. He submits that reference to Section 12(1)(a) of the Act in the order, appears to be due to accidental slip, and that the actual ground pleaded by the respondent fits into the one under Section 12(1)(c) of the Act.
5. Condonation of delay of 75 days in presenting an application to set aside an ex parte decree passed against a woman spouse, that too when grounds of ill-health and not being in station are pleaded, must not have presented any difficulty for the Court. It must not be forgotten that the order passed in such application would have a hearing on the sustenance or severance of the matrimonial relationship and a technical or pedantic approach must always be avoided, in such matters.
6. The petitioner had not only pleaded that she was not in Hyderabad at the time, when the O.P. was taken up for hearing, but has also filed the railway tickets in proof of her contention. She filed medical prescriptions to buttress her plea that she was unwell. The learned Family Judge, Hyderabad, referred to many instances of absence, on the part of the petitioner, and on all the occasions, the grounds of ill-health of the petitioner were pleaded. There is nothing unnatural about it, since the ground pleaded by the respondent is that on the next date of marriage itself, the petitioner became unconscious. The record also discloses that the petitioner is undergoing treatment, for her ailment.
7. A copy of the order and decree, dated 22-12-2005, is placed before this Court. There are certain aspects, which cannot be countenanced in law. Though this C.R.P. is filed against an order passed under Section 5 of the Limitation Act, this Court cannot but express its view, lest the parties are subjected to unnecessary litigation. For instance, having said that the petitioner did not turn up in the case, the Court proceeded to observe that the arguments of the petitioner were heard. If there was any lapse on the part of the petitioner, the Family Court ought to have set her ex parte. However, it proceeded to decide the matter, treating that the arguments on behalf of the petitioner are heard, when in fact, no such arguments were advanced. Such an approach, would alter the very complexion of adjudication.
8. This is another serious infirmity in the order, dated 22-12-2005. After referring to the various stages up to the date of passing the order in the O.P., the Family Court proceeded to adjudicate the matter as under:
Section 12(1) of the HM Act says any marriage solemnized whether before or after the commencement of this Act shall be voidable and may be annulled by decree of nullity on the ground that the marriage has not been consummated owing to the impotency of respondent. In the present case the specific case of PW1 is on account of the ill health of respondent who is suffering from Rheumatic heart disease the marriage was not consummated. As PW1 was not cross-examined in spite of giving sufficient opportunity to respondent and as respondent did not come before the Court to establish that the allegation of PW1 is totally false and in fact the marriage was consummated and she became pregnant which ended in abortion. The unchallenged allegations of PW1 with regard to non consummation of marriage remains unrebutted and on this ground PW1 is entitled to avoid the marriage as it is a voidable marriage and he is entitled to the relief of a decree of annulment of his marriage with respondent. The point is answered accordingly.
9. In all fairness, the learned Counsel for the respondent submitted that his client never pleaded the ground under Section 12(1)(a) of the Act and in fact, the said ground cannot fit into the facts and circumstances of the case, and at the most, it can fit into the one under Section 12(1)(c) of the Act. When such a glaring irregularity has taken place, the Family Court ought to have treated the applications filed under Order IX Rule 13 C.P.C. and Section 5 of the Limitation Act as an opportunity, to correct the mistake, and ought to have decided the matter afresh by applying the correct principles of law. However, it has chosen to find fault with the petitioner, by adopting a hyper technical approach.
10. Though the learned Counsel for the parties did not express any grievance, in the matter of continuing the proceedings before the same Court, after the delay is condoned, this Court is of the view that to avoid any embarrassment to the learned Family Judge, Hyderabad, in the matter of reconciling the aspects, referred to above, it is thought appropriate to transfer the matter to the Family Court, Secunderabad.
11. For the foregoing reasons the Civil Revision Petition is allowed and consequently, LA. No. 376 of 2006 shall stand allowed. To avoid further complications in the matter, the order and decree, dated 22-12-2005, passed in O.P. No. 742 of 2004, on the file of the Family Court, Hyderabad, are also set aside. The O.P. shall stand transferred to the Family Court, Secunderabad, for fresh adjudication and disposal. It is directed that the petitioner must not commit any default in any step; and in case, there is any non-cooperation from her side, it shall be open to the learned Family Judge. Secunderabad, to set for ex parte and proceed with the matter, in accordance with law. On a day fixed by the learned Family Judge, Secunderabad, the petitioner shall proceed with the cross-examination of P.W. 1, without the necessity of filing any further applications, and adduce her evidence, if possible, on the same day, or on day-to-day basis. There shall be no order as to costs.