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Rajasthan High Court · body

2000 DIGILAW 1057 (RAJ)

Gyatri Asopa v. Dinesh Kumar

2000-08-21

N.P.GUPTA

body2000
JUDGMENT 1. - By this appeal the appellant wife has challenged judgment and decree of the learned trial court dated 7.8.97 whereby the decree for dissolution of marriage has been passed on the ground of cruelty on the part of the wife. This is an exparte decree. 2. The marriage of the parties was solemnised on 1.12.95 and the divorce petition has been filed on 22.5.96 along with an application Under section 14 of the Hindu Marriage Act. 3. The ground given in the divorce petition is that initially after marriage the wife hardly remained for 8 days in the matrimonial home without discharging conjugal obligations. It is then alleged in para 6 of the application that in the end of second week of the month of December when the applicant went to fetch the wife and to bow to the religious places, the wife declined to accompany and it was with great difficulty that she agreed to go, and on the way also she dictated very many terms. Thereafter she remained for one month in the matrimonial home again without discharging conjugal is obligations, maintaining the attitude of cruelty as detailed in para 7 of the application. Various other allegations of cruelty (mental) have been raised. After service of the notice, the appellant appeared, and on 6.12.96 filed a reply to the divorce petition, so also filed a reply controverting the application under section 14. The contention of the wife is that right from day on her in-law family started raising a dispute on the question of dowry and had bad intentions to kill her otherwise if they are prepared to keep her well she is always ready to live in the matrimonial home. 4. From the order sheets of the learned trial court it appears that on 6.12.96 case was fixed on 7.2.97 for reconciliation, on which date the learned presiding Officer was on leave. Then on next date being 4.4.97 the appellant could not appear and the husband and his advocate gave out that reconciliation is not possible, and thereafter issues were framed. It is in this sequence that after framing of the issues on 11.7.97 the counsel for the husband sought time for leading evidence and the case was fixed on 16.7.97. At the same time notices for Lok Adalat were also ordered to be issued to both the parties. It is in this sequence that after framing of the issues on 11.7.97 the counsel for the husband sought time for leading evidence and the case was fixed on 16.7.97. At the same time notices for Lok Adalat were also ordered to be issued to both the parties. On 16.7.97 it so happened that the appellant or her counsel did not appear and the case was ordered to proceed ex parte and at the same time fresh notice for Lok Adalat were also ordered to be issued for 26.7.97. Then on 26.7.97 learned Presiding Officer was on leave, then on 6.3.97 ex parte evidence of one Ram Swaroop and the husband was recorded and on 7.8.97 the impugned decree was passed. It is significant to note from 16.7.97 there is no mention in the order sheets as to what happened to the Lok Adalat notices or the out come of any Lok Adalat. Perusal of the record shows that the notices issued for 16.7.97 was served on the husband while notice sent to the appellant was received by the process server on 21.7.97 and therefore could not be served. In the proceeding of the court the presence of the husband is not mentioned and there are not separate proceeding of any Lok Adalat available on record. Then the fresh notices that were issued for 26.7.97, which again could not be served on the appellant, as she had gone with her mother to attend some marriage. It is in this view of the matter that when despite ordering the case to proceed ex parte, notice were issued for Lok Adalat and it appears from the record that they were not served, in my view before deciding the case the learned court below should have ensured the service of notice of Lok Adalat, and should have made an earnest endeavour for reconciliation between the parties, if possible and in the event of its failure only the case should have been allowed to proceed ex parte. This is one aspect of the matter. This is one aspect of the matter. The other aspect of the matter is that a look at the application filed under Section 14 by the husband shows that it practically reiterates the averments made in the divorce petition, and only pleads that the conduct of the wife is height of cruelty, and it is not possible in any circumstances for the parties to live together, and therefore the divorce petition should be allowed to be presented before expiry of one year since the date of marriage. On this application by simply hearing the learned counsel for the husband, even without recording its satisfaction required by Section 14 about the case being one of `exceptional hardship' to the applicant or of "exceptional depravity" on the part of the respondent, has practically in a routine manner allowed the application. Be that as it may. The fact remains that after appearance the wife contested that application by filing a reply duly supported by an affidavit and in the impugned judgment and decree the contention of the wife which was duly supported by the affidavit has not even been considered. 5. Be that as it may. The fact remains that after appearance the wife contested that application by filing a reply duly supported by an affidavit and in the impugned judgment and decree the contention of the wife which was duly supported by the affidavit has not even been considered. 5. Yet another circumstance is that though as per the order sheet dated 16.7.97 wife or her counsel did not appear and the learned trial court ordered the case to proceed ex parte, but then in view of the above circumstances, may be that except for issuance of notice for Lok Adalat the learned trial court may not be very wrong in directing the case to proceed ex parte, still taking an overall view of the matter, viz that the marriage has been solemnised only on 11.12.95 and the petition for dissolution has been filed on 22.5.96 itself and it was only on one date being 16.7.97 that the wife and her counsel happened to remain absent, while on the next date the learned Presiding Officer was on leave being 26.7.97, and shortly thereafter i.e. on 7.8.97 decree for divorce has been passed, since dissolving of marriage of the parties who belong to Brahmin community where remarriage is also not that convenient, the sequence of events rather show that the wife did not get sufficient opportunity to properly contest the petition, and, even irrespective of anything interest of justice do require that she should be given appropriate opportunity to contest the petition instead of she being faced with such ex parte decree of divorce. 6. Accordingly the present appeal is allowed. The impugned judgment and decree is set aside. The matter is remanded back to the learned trial court with a direction to give an opportunity to the appellant to so cross-examine the witness already examined on the side of the respondent, then to give opportunity to the husband to lead any further evidence, if he so likes, and thereafter to give opportunity to the wife to lead her evidence, and then to decide the matter afresh in accordance with law. The learned trial court is further directed to make an earnest endeavour afresh to see as to whether any reconciliation is possible between the parties. The learned trial court is further directed to make an earnest endeavour afresh to see as to whether any reconciliation is possible between the parties. Likewise the learned court will also see as to whether the grounds contemplated by Section 14 exists in the present case to entertain the petition for dissolution of marriage before the expiry of one year from the date of marriage. The learned trial court shall of course proceed with the trial expeditiously.Appeal allowed. *******