The Delhi High Court has dismissed an appeal filed by the husband challenging the order dated 05.02.2026 passed by the learned Principal Judge, Family Court, South-West District, Dwarka Courts, Delhi, whereby the application of the wife was allowed, the earlier order dated 20.09.2024 striking off her defence was set aside, and her right to file the written statement was revived in HMA No. 64/2024. A division bench comprising Justices Vivek Chaudhary and Rajneesh Kumar Gupta, in the judgment pronounced on 05.05.2026 (reserved on 17.03.2026) in MAT.APP.(F.C.) 63/2026, held that the Family Court rightly exercised its discretion in restoring the wife’s right, as the husband had failed to comply with the direction to pay litigation expenses of Rs.11,000/- within the stipulated time, thereby disabling the wife from properly contesting the case.
The marriage between the parties was solemnized on 08.02.2019 as per Hindu rites and ceremonies, and one male child was born out of the wedlock, who is in the custody of the wife. Due to matrimonial discord, the wife left the matrimonial home in late 2023 along with the child. The husband filed a petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. On 18.04.2024, the Family Court directed the husband to pay litigation expenses of Rs.11,000/- to the wife within one week and granted her four weeks to file the written statement. The husband did not pay the amount within the stipulated period. The wife also failed to file the written statement within the extended time. On 20.09.2024, the Family Court struck off the wife’s defence on the husband’s application. Litigation expenses were paid by the husband only thereafter.
Subsequently, on 14.10.2025, the wife moved an application seeking setting aside of the order dated 20.09.2024 and revival of her right to file the written statement. The Family Court, vide the impugned order, allowed the application, observing that the husband himself was to be blamed for the delay in filing of the written statement as he had not paid the litigation expenses in time.
Before the High Court, the husband contended that the wife’s application was highly belated, the statutory timeline under Order VIII Rule 1 CPC stood defeated, and she had waived her right by participating in proceedings and cross-examining him. The Court rejected these contentions, holding that the principle embodied in Section 23 of the Hindu Marriage Act — that a party cannot be permitted to take advantage of its own wrong — applies as an equitable principle throughout the proceedings. The husband’s failure to comply with the Family Court’s direction to pay litigation expenses disabled the wife from conducting her defence properly. The Court noted that the husband cannot put the wife at a disadvantage by his own default and then seek to benefit from it.
The High Court clarified that the upper limit for filing the written statement is directory and delay can be condoned in appropriate cases, as held by the Supreme Court in Salem Advocate Bar Association, T.N. v. Union of India and Sesh Nath Singh v. Baidyabati Sheoraphuli Coop. Bank Ltd.. The impugned order was passed in equity and did not suffer from any infirmity. The appeal was accordingly dismissed with the clarification that the observations are confined to the appeal and shall not prejudice the merits of the main petition, which the Family Court was directed to decide expeditiously.
Case Details:
Title: [Appellant] Versus [Respondent]
Citation: 2026:DHC:3904-DB
Case No.: MAT.APP.(F.C.) 63/2026 & CM APPL. 12509/2026
Coram: Justices Vivek Chaudhary and Rajneesh Kumar Gupta
Date of Judgment: 05.05.2026 (Reserved on 17.03.2026)
Click HERE for full Judgment.
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