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2007 DIGILAW 642 (MP)

Rachna Sachdev v. Manohar Sachdev

2007-06-26

J.K.MAHESHWARI, S.K.KULSHRESTHA

body2007
ORDER Kulshrestha, J. -- 1. This appeal has been filed against the ex-parte judgment and decree dated 5.5.2006 of the Principal Judge, Family Court, Indore, in Marriage Case No. 75/2006 by which the learned Judge has allowed the petition for divorce under section 13 (1) (ib) of the Hindu Marriage Act, 1955, and dissolved the marriage between the appellant and the respondent. 2. Learned counsel for the appellant submits that on account of the examination of her son, the appellant could not appear before the Family Court on the date fixed in this behalf and since thereafter she was taken ill, she could not appear and ascertain the position of the said case. It is also stated that a case u/S. 9 of the Hindu Marriage Act, has already been· filed by the appellant-wife in the Court having jurisdiction at Ahemadabad prior to the proceedings initiated by the respondent and, therefore, also, the suit filed by the respondent was not maintainable and, in any case, it could not have been proceeded with till the decision of the proceedings launched at Ahemadabad. In support of the cause pleaded, Annexure A-1 has been filed to show the date on which the examination was conducted and Certificate of Dr. Mukesh Chaudhary (Annexure A-2) has been filed to show that the appellant was suffering from acute viral hepatitis from 12.4.2006 to 15.6.2006 and was advised complete bed rest. 3. On a preliminary objection having been raised with regard to the maintainability of this appeal u/S. 19, for the purpose of setting aside an ex-parte decree, the learned counsel has pointed out that since section 19 provides for an appeal against every judgment or order passed by the Family Court, to the High Court, both on facts and on law, the appeal was maintainable under the said provision even for setting aside the ex-parte decree, simpliciter. 4. Section 10 of the Family Court Act, 1984 provides as under: "10. 4. Section 10 of the Family Court Act, 1984 provides as under: "10. Procedure generally :- (1) Subject to the other provisions of this Act and the rules, the provision of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings other than proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Cout and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. (2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder shall apply to the proceedings under Chapter IX of that Code before a Family Court. (3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by the other." 5. From a perusal of section 10, it is luculent that subject to the other provisions of the Family Courts Act, provisions of the Code of Civil Procedure and of any other law for the time being in force shall apply to the suits and proceedings other than proceedings under Chapter IX of the Code of Criminal Procedure, before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. We do not notice any contrary provision in section 19 of the Family Courts Act which militates against the power granted to the said Court by section 10 of the Act. Under these circumstances, it would be fallacious to contend that the Family Court does not have power to entertain an application under Order 9 R. 13 of the CPC. We do not notice any contrary provision in section 19 of the Family Courts Act which militates against the power granted to the said Court by section 10 of the Act. Under these circumstances, it would be fallacious to contend that the Family Court does not have power to entertain an application under Order 9 R. 13 of the CPC. We are of the considered view that the Family Courts Act, being a special statute, to give full effect to the purpose for which the said Act has been enacted, a liberal construction should be made with regard to the provisions of the Act to ensure that the power of the Court is not curtailed or impeded. As a matter of fact, the Court should be armed with full powers consistent with the provisions made in the Code so that all matters cognizable by the Family Courts can be effectively dealt with. 6. In view of the fact that under the provisions of section 10 of the Act, the appellant has an opportunity to apply under O. 9 R. 13 of the CPC and since it would be necessary for the appellant to adduce evidence in respect of Annexure P-l, the Time Table and Annexure P-2, the Certificate the Doctor, we are of the considered view that it would be more appropriate for the appellant to make an application before the Family Court for setting aside ex-parte decree. We make it explicit that if such an application is made within a fortnight from today, the Family Court shall proceed to decide the same on merits. 7. This appeal is thus disposed of with no order as to costs.