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2014 DIGILAW 935 (PAT)

Sweta Rani v. Deepak Kumr Prasad

2014-09-01

RAMESH KUMAR DATTA, RAVI RANJAN

body2014
RAMESH KUMAR DATTA, J.:–Heard learned counsel for the appellant. No one appears for the respondents even today and had not appeared earlier on the last two occasions also. 2. The appeal has been filed against the judgment and order dated 15.07.2010 passed by the Principal Judge, Family Court, Darbhanga in Matrimonial Case No. 86 of 2009. The matrimonial case was filed seeking decree of restitution of conjugal rights by the respondent against the appellant-wife under Section 9 of the Hindu Marriage Act. 3. Upon service of summons the appellant sent her written statement by registered envelope which was opened in Court, a copy of which was served upon the respondent on 4.11.2009 on the same day and the matter was directed to be put up on 16.11.2009 for conciliation directing the parties to come in person on the date fixed. On 16.11.2009 the appellant entered appearance through lawyer by filing Vakalatnama. On the next date fixed on 18.12.2009 none of the parties had appeared and they filed their respective time petitions. On 22.1.2010 while the respondent appeared but the appellant again prayed for time which was allowed on payment of cost. Again on 17.2.2010 the appellant failed to appear and prayed for time which was again allowed on payment of cost. On 18.3.2010 the appellant was again absent and time petition was filed on the ground of illness of her child. Learned Principal Judge after recording that the case has been posted for reconciliation but in spite of several directions and adjournments the appellant was not appearing in Court in person, fixed the case for ex parte hearing. 4. On the next date 15.4.2010 the Court was vacant. Attendance was filed on behalf of the appellant. Also on 10.5.2010 and 2.6.2010 the appellant filed the attendance. Thereafter on 1.7.2010 when the matter was taken up before the incumbent Principal Judge, no attendance was filed on behalf of the appellant. On 9.7.2010 also the appellant was absent and the evidence of the respondent was directed to be closed and the impugned judgment and order dated 15.7.2010 was passed decreeing the case and directing the appellant to resume her conjugal life within sixty days of the order. 5. On 9.7.2010 also the appellant was absent and the evidence of the respondent was directed to be closed and the impugned judgment and order dated 15.7.2010 was passed decreeing the case and directing the appellant to resume her conjugal life within sixty days of the order. 5. Learned counsel for the appellant submits that it is evident from the order sheet of the matrimonial case that the learned Principal Judge has acted contrary to the statutory rules framed by this Court in the matter, namely, the Family Court (Patna High Court) Rules, 2000, under Rule 12 of which if the parties failed to arrive at any settlement the Judge is required to fix the case for evidence and proceed accordingly in the matter. It is submitted that the learned Principal Judge has completely overlooked the procedure that is required to be followed and only on the ground that the appellant had not personally appeared for the purposes of conciliation, but was still present through her counsel, the case was wrongly fixed for ex parte hearing. Learned counsel submits that since the written statement had admittedly been filed by the appellant and she was also regularly giving attendance through her counsel, the matter could not have been fixed for ex parte hearing and the matter disposed of as has been done by the learned Principal Judge. 6. In our view, there is sufficient force in the submission of learned counsel for the appellant as is evident from the gist of the order sheet stated above. The learned Principal Judge, Family Court ought not to have proceeded in the matter ex parte only on the ground that the appellant had repeatedly failed to appear personally in Court for the purpose of conciliation. It was well within the powers of the Principal Judge to have taken coercive steps for the appearance of the appellant for the purpose of conciliation if he so thought fit and if he came to the conclusion that the conduct of the appellant showed that there was no chance of any settlement between the parties then he ought to have closed the conciliation proceedings. In the presence of the written statement and of the counsel for the appellant on each of the dates as also on 18.3.2010 when the order of ex parte hearing was passed, there was no occasion for the learned Principal Judge to have fixed the case for ex parte hearing. The proceedings are, accordingly, contrary to the procedure prescribed by this Court under Rule 12 of the Family Court (Patna High Court) Rules and it has resulted in grave injustice to the appellant. 7. The appeal is, accordingly, allowed. The judgment and order dated 15.7.2010 as also the order dated 18.3.2010 fixing the case for ex parte hearing are both set aside and the matter is remanded to the Family Court, Darbhanga to proceed afresh in the matter from the stage of conciliation. ?