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2014 DIGILAW 2078 (RAJ)

Trupti Rani v. Dwarika Nath Sathpathy

2014-12-10

PRAKASH GUPTA, SUNIL AMBWANI

body2014
JUDGMENT : We have heard learned counsel for the parties. 2. This Misc. Appeal filed under Section 19 of the Family Courts Act arise out of the order passed by the Family Court No.1, Jodhpur, rejecting the application filed by the appellant wife under Order 9 Rule 13 CPC for setting aside the exparte decree of divorce dated 25.4.2009 on the ground of cruelty. 3. The appeal was reported to be time barred by 49 days. The delay in filing this appeal was condoned by an order dated 3.7.2012. 4. The facts giving rise to this appeal are that the respondent husband filed a matrimonial petition for divorce under Section 13(1)(i) & (ia) of the Hindu Marriage Act, 1955 (for short "the Act") on 30.6.2008 stating that the parties were married in accordance with the Hindu rites on 6.5.2007 in village Haripura, Orissa. The couple do not have any children. The respondent husband was serving in Air Force and posted at Jodhpur. The appellant wife, prior to her marriage, was serving in Hyderabad and after marriage, she wanted to go back and serve at Hyderabad. She refused to accompany her husband to live together in Jodhpur. He was required to report at Jodhpur and, therefore, requested his wife to accompany him but she refused to accompany him. In July 2007, the respondent husband came to know that father of appellant wife had called her from Hyderabad. He tried to make her understand but she did not agree to live with him at Jodhpur. Later, she left the house in Orissa and started living at Hyderabad, where she was attending the Martial Art classes and was wearing t-shirt & shorts, which resulted in defaming the husband. When she was asked not to wear such clothes, she had hit her husband's mother with a steel glass, on which her mother suffered injuries. In September, 2007, the appellant wife came to Jodhpur and pressurised the respondent husband to accompany him to Hyderabad. The husband and wife travelled from Jodhpur to Bhubaneshwar on 19.10.2007, where he handed her over to her parents. Thereafter, she did not come to live with him at Jodhpur and rather preferred to live at Hyderabad. 5. In September, 2007, the appellant wife came to Jodhpur and pressurised the respondent husband to accompany him to Hyderabad. The husband and wife travelled from Jodhpur to Bhubaneshwar on 19.10.2007, where he handed her over to her parents. Thereafter, she did not come to live with him at Jodhpur and rather preferred to live at Hyderabad. 5. It was further stated in the plaint that the appellant wife filed a case under Section 498A IPC on which the police approached the respondent's family to arrest him, which also tarnished the image of his family in Orissa. 6. The family court found that despite service of summons, the appellant wife did not appear in the court, on which an order was passed on 6.2.2009 to proceed exparte against her. The family court examined the respondent husband, Dhirendra Nath Shatpathi and Praveen Kumar Samal and while accepting their statements, decreed the suit for divorce on 25.4.2009 on the findings that the facts stated in the plaint and the statements of the witnesses are sufficient to prove cruelty by the appellant wife. The Family Court also referred to a case for judicial separation under Sec.10 of the Act filed by the appellant wife against respondent husband in Orissa, but did not refer to the grounds on which the judicial separation was sought or on which the order was passed in the proceedings. 7. The appellant wife filed an application under Order 9 Rule 13 CPC for setting aside the exparte decree on the ground that she did not have sufficient means to travel upto Jodhpur to defend the case. She received the summons and thereafter approached the Legal Services Committee in the Supreme Court for filing a petition for transferring the proceedings of the case from Jodhpur to Orissa, which was registered as Transfer Petition No.533/2009. When the petition came up for hearing, the Supreme Court was informed that the suit has already been decided and an exparte divorce decree has been passed and, thus, the Transfer Petition was disposed of with liberty to appellant wife to file an application under Order 9 Rule 13 CPC for setting aside the exparte decree and, thereafter, the appellant would be at liberty to approach the Supreme Court for transfer of the proceedings. 8. 8. The appellant wife stated in her application for setting aside the exparte decree that she had sent a letter to the Family Court, Jodhpur expressing that she was unable to travel upto Jodhpur and to defend the proceedings there. She also stated in her letter that she applied through Legal Services Committee to the Supreme Court for transfer of the case. 9. The Family Court has rejected the application under Order 9 Rule 13 CPC on the ground that notice of the case was served upon her. She remained absent even after service of the notice on which the order was passed on 6.2.2009 to proceed exparte against her. She made an application in the month of March but then, since no orders were passed by the Supreme Court and that she had only approached the advocate and that there was no interim order, the Family Court could proceed to decide the matter exparte. The Family Court also found that even in the month of April, 2009, when the divorce decree was passed, there was no stay order by which the divorce proceedings may have been stayed and that merely filing an application before the Supreme Court did not amount to stay of the proceedings and, thus, in view of the circumstances, her absence on the date when the exparte decree was passed, was not sufficiently explained. The Family Court also observed that the parties were already in litigation in which the suit for judicial separation has been filed by appellant wife in the court at Cuttack and that she also had the knowledge of the proceedings pending in the Family Court, but despite that, the application for setting aside the decree of divorce was not filed within the time prescribed. 10. We have considered the arguments made at the bar and find that though appellant wife did not file a petition in the Supreme Court and that there was no interim order, which may have stopped the family court to pass a decree of divorce, the circumstances, explained by her, were more than sufficient to exercise its discretionary power to allow the application for setting aside the exparte decree. The letter sent by the appellant wife that she was unable to travel upto Jodhpur and that she was taking steps to file an application in the Supreme Court, was available on record. The letter sent by the appellant wife that she was unable to travel upto Jodhpur and that she was taking steps to file an application in the Supreme Court, was available on record. The Family Court had noticed the contents of the letter in which the appellant wife expressed her inability to travel upto Jodhpur. It, however, neither made any comments on such request nor has recorded any finding that she had sufficient means to travel upto Jodhpur and her inability to appear in the court to defend herself in the proceedings. 11. We are of the view that once it came to the notice of the Family Court that appellant wife was making efforts to approach the Supreme Court by filing a petition for transfer of the case and that the transfer petition was dismissed only on the ground that by the time, transfer petition came up for hearing before the Supreme Court, the suit had already been decreed, the Family Court should have considered as to whether she had the means to defend herself and the efforts, made by appellant wife to transfer the proceedings to Cuttack in Orissa, were bonafide. 12. We do not find that there is any finding arrived at by the Family Court in the order rejecting application for setting aside the exparte decree to the effect that the appellant wife had sufficient means to travel upto Jodhpur and to contest the case. The Family Court has also not recorded the finding as to whether in view of the order of the Supreme Court, the matter should be restored so that the transfer application may be considered on merits. In our view, the Family Court should have considered the request made by the appellant wife that she was unable to travel upto Jodhpur and should have allowed the application under Order 9 Rule 13 CPC, to allow the appellant wife an opportunity to satisfy the Supreme Court that the matter requires transfer of the proceedings to Orissa. The intimation given by her by a letter which was available on record, was sufficient ground to recall the order, even if she was served and had the knowledge of the proceedings. 13. The Misc. appeal is consequently allowed. The intimation given by her by a letter which was available on record, was sufficient ground to recall the order, even if she was served and had the knowledge of the proceedings. 13. The Misc. appeal is consequently allowed. The order of the Family Court dated 2.2.2011 by which the application under Order 9 Rule 13 CPC was rejected and the exparte decree dated 25.4.2009 are set aside. The matter is remanded to the Family Court No.1, Jodhpur to hear and decide the divorce case on merits. The Family Court will also, if any request is made by the appellant wife, give her sufficient time to avail remedy by approaching the Supreme Court for transfer of the proceedings to State of Orissa. In view of the fact that appellant wife has not been paid any permanent alimony by the Family Court and considering her inability to contest the matter, the respondent husband is directed to pay Rs.10,000/- as cost of the proceedings to the appellant wife. Appeal Allowed.