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Madhya Pradesh High Court · body

2010 DIGILAW 394 (MP)

Sohanlal v. Manju

2010-04-05

PIYUSH MATHUR

body2010
ORDER 1. The Husband has preferred this Revision Petition by challenging the correctness and legality of an Order passed by the Family Court, Gwalior, in Civil, M.J.C. No. OS/2007 on date 16.10.2007 whereby the application preferred by the wife, under Order 9 Rule 13 of the Civil Procedure Code, seeking setting aside of an ex parte decree of Divorce, has been allowed, on the ground that technical attitude should not be adopted in a Matrimonial Dispute, while entertaining an application under Order 9 Rule 13 of CPC. 2. Smt. Manju Ratnakar and Sohanlal Ratnakar are the married couple and Husband Sohanlal had submitted an application seeking divorce from his wife, which was registered as Case No. 309-A105, and the notice was issued to the wife, which allegedly was served upon her and on account of her absence in the proceedings, an order was passed for proceeding ex parte against the wife and later on an ex parte Decree of Divorce was drawn by the Family Court in favour of the Husband on Date 1.3.2006. Soon upon receiving the intimation of the passing of the ex parte Decree, from her own Mother-in-law, the wife had obtained a Certified Copy of the judgment and decree and had approached the Family Court by preferring an application under Order 9 Rule 13 of CPC alongwith an application under section 5 of the Indian Limitation Act. 3. The Family Court had permitted the parties to adduce evidence on the application preferred Order 9 Rule 13 of CPC. The Husband has examined the process Server, who initially deposed that he knows the wife and has effected the service upon her, however during cross-examination, he failed to establish the identity of the wife, which created a doubt in the mind of the Family Court, however, on account of the marking of signature of wife, on the Process Report, the Court found that notice of Divorce Petition was properly served upon the wife. The Family Court further found that the wife had approached the Family Court with utmost bona fides and looking to the reasons assigned in the application seeking condonation, the delay in preferring the application was condoned. The Family Court further found that the wife had approached the Family Court with utmost bona fides and looking to the reasons assigned in the application seeking condonation, the delay in preferring the application was condoned. The family Court had further opined that in a Matrimonial Dispute, no technical attitude should be adopted, while entertaining an application preferred under Order 9 Rule 13 of CPC, as these provision should be utilized liberally and in view of the principle of natural justice, both the parties should be afforded an adequate opportunity of hearing. The Family Court has ordered for setting aside the Ex Parte Decree of Divorce by the impugned Order passed on date 16.10.2007, which has been challenged by the husband before this Court through this Civil Revision. 4. I have heard Shri Manish Sharma. Learned counsel for the petitioner and Shri H.K. Shukla, learned counsel for the respondent and perused the record. 5. A perusal of the statements recorded during consideration of application (U/Or. 9 Ru. 13 CPC) demonstrate that the wife and husband were living together and she was discharging her matrimonial obligations, when suddenly the mother of her husband disclosed to her on date 27.4.2007 that an exparte decree of divorce has been obtained by her husband on date 1.3.2006. The wife has categorically denied the service of Notice as also the signature on the notice, which the husband allegedly claims to have properly served upon her although it was found by the Court that the husband had miserable failed to adduce any evidence in rebuttal that the signature marked on the notice is made by his wife Smt. Manju Ratnakar herself. The record also reveals that Smt. Manju Ratnakar was confined in j ail for sometime even when the present Revision was pending before this Court. 6. The husband had moved an application I.A. No. 18616/07 before the High Court (in the present matter) for securing service of notice upon his wife, through jailor, on the ground that she is confined in the State Prison (in relation to some other matter) and the service should be effected through the Superintendent of Jail, Shajapur. 6. The husband had moved an application I.A. No. 18616/07 before the High Court (in the present matter) for securing service of notice upon his wife, through jailor, on the ground that she is confined in the State Prison (in relation to some other matter) and the service should be effected through the Superintendent of Jail, Shajapur. This fact has no relevance so far as the bye-parte evidence adduced regarding setting aside of the ex-parte Divorce Decree is concerned, however, learned counsel for the respondent has made much stress on this fact to demonstrate the adequate opportunity was not available to the wife, on being confined in Jail. 7. The Family Court while examining the issue regarding service upon the wife has reached a conclusion that the wife has failed to establish that some irregularities were committed in effecting service of summon upon her and the counsel for the petitioner has made much stress upon this observation of the Court that upon finding the service to be proper, the family Court was not justified in setting aside the ex -parte decree.