120 days limitation dose not apply in family court but commercial court.
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WS 120 days
Hello I am the Hindu husband and my marriage solemnised on 24/04/2016 was residing with me and my mother and working in SBI at my place only. My wife left home on 13/09/2017 and later on she transferred her self to another branch of SBI and without my knowledge and later refused to live with me and my mother. I filed a divorce suit first on ground of cruelty on 12 July 2019 whose summons was served upon her on 20 July 2019 fixing WS for 23rd Aug. As I was aware that she will file C24 transfer petition I filed caveat in HC on 30 July 2019 . Also two year desertion period expired on 13/09/2019 so I instituted desertion suit on 13/09/2019 and both petition we're fixed for 20 Oct 2019. In the mean time she filed c 24 transfer petition on 18/09/2019 against cruelty petition and in the mean time she received summons of desertion petition on 23/09/2019. I appeared before FC on 20/0ct 2019 and communicated stay order against cruelty suit,however desertion suit was continued and my wife still did not appeared.Matter was listed for 22/Nov/2019 and HC dismissed her transfer petition on 20/Nov /2019. I communicated the decision of HC on 22 Nov 2019 via affidavit as judgement copy was not available .Matter was fixed for WS on 6 Dec 2019. My wife appeared 0n 6 Dec without lawyer. Matter was fixed for 20 Dec 2019 for WS. She again appeared and this time with lawyer. And now matter is fixed for 7 Feb 2020 for WS for both suits as FC is closed for the month of Jan. Now in lieu of above facts and circumstances and considering 120 days criteria for WS when exactly 120 days will exp????? For both petition. I asked local lawyers and they are also confused as matter was stayed by HC for cruelty petition and two suits were instituted by me and we're clubbed together . Please advise me accordingly
Asked 6 years ago in Family Law
Religion: Hindu
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13 Answers
1. There is a decision of the Apex Court based on which the lower Court cab waive the limitation period for filing the WS depending on the merit of the application filed for the said purpose.
2. In the instant case, the period will counted starting from the date of dismissal,of her transfer petition by the HC.
Wife can file written statement on next date of hearing
2) since proceedings were stayed by HC the period of stay would be excluded
3) even if there is delay in filing WS court would condone same in interests of justice on payment of nominal costs
order 8 rule 1 and rule 10 of CPC read as follows [1.Written Statement.—The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.] *[Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be Recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.] 10. Procedure when party fails to present written statement called for by Court.—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, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up:] *[Provided further that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of WS. SC in some judgement held that by virtue of rule 10 order 8 of CPC court looses it's power to take WS on record and this can't be override by invoking 151 of CPC.So What about the period before granting of stay order??? She filed C24 after 50 days fromservice of sumon
Asked 6 years ago
Wife can take our application for condonation of delay in filing of WS
2) court can in interest of justice condone delay on payment of costs
3) wife should have filed WS within 30 days of service of summons
See the time period for which the matter was stayed shall be excluded from counting the period for WS though she even if there is delay in filing court condone same seeking reason so stressing on same won't help you much.
The computation for the limitation period for filing written statement will begin from the date of receiving the summons by her.
However the period of stay by high court may be excluded while computing the 120 days period to calculate limitation.
The calculation has been explained by you as well as in my previous post.
You may decide further course accordingly.
You get 90 days to file the ws. And the time starts from receipt of the said suit to you
- As per the Supreme Court , a Written statement is to be filed within a period of 30 days. However, a grace period of 90 days is granted, the reasons for which the court must record in writing, and the payment of costs as it deems fit to allow such a written statement to be put on the record. What is of importance is the fact that beyond the 120 days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.
- But, the period of stay by high court will not be counted for computing the 120 days period limitation.
- However, the next date 7 Feb, 2020 should not be fixed for filing W.S. as per law. There should be direction to your wife to file the WS in advance and not on 7 Feb.
1. In one of my recent case, Howrah court has allowed the otherside/wife to submit the W.S. after completion of 180 days showing the ground that it is required for the ends of justice. the wife had shown engagement with her mother who died in cancer during the said period.
2. it all depends on the of the ground the other side forwards.
1. Their is not such fixed criteria of filing Written statement that is 120 days court generally give three to four opportunities for filing WS.
2. both your petition should be clubbed together and one petition for divorce should go forward.
3. If respondent fails to give WS in court then court will struck off defence of respondent.
1. The limitation begins from the date of service of defendant.
2. If the period of 90 days has lapsed then court cannot, except if it has passed a specific order requiring the defendant to file WS on a particular date, take WS on record except if it grants leave to the defendant.
Party can insists for ad interim stay till reply not filed and argument on stay application.