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2015 DIGILAW 1305 (RAJ)

Anita Koli v. Shyamlal Koli

2015-07-15

VINEET KOTHARI

body2015
JUDGMENT : Vineet Kothari, J. The present appeal has been filed by the appellant-wife, Anita, being aggrieved by the ex parte divorce decree dated 18.07.2009 granted in Civil Misc. Case No.24/2008- Shyamlal v. Anita, by the learned District Judge, Sirohi, under Section 13 of the Hindu Marriage Act, 1955, in favour of respondent/husband. The appellant has also assailed the order dated 25.04.2011 passed by learned District Judge, Sirohi, in Civil Misc. Case No.141/2009, whereby the application filed by the appellant-wife under Order 9, Rule 13 CPC for setting aside the ex parte divorce decree was also dismissed. While rejecting the application under Order 9, Rule 13 CPC, the learned court below had given following reasons:- ^vuqrks"k QyLo:i fook|d la[;k ,d o nks ds fu.kZ; ls ;g rF; Hkyh Hkkafr fl) gks tkrk gS fd izkFkhZ dks ,d i{kh; dk;Zokgh dh xbZ gS ml fLFkfr esa mldks uksfVl dh rkyhe fof/kor :i ls gks pqdh Fkh] mlds ckn Hkh mls fnukad 21-7-2008 dks ?kjsyw fgalk ds izdj.k esa bl izdj.k dh ;kfpdk dh udy is'k fd;s tkus ls mls bldh tkudkjh gks pqdh Fkh fQj Hkh og U;k;ky; esa mifLFkr ugha gqbZ] u gh ,d i{kh; dk;Zokgh dks vikLr djkus gsrq vof/k e/; dk;Zokgh dh u gh dk;Zokgh esa Hkkx ysus dk iz;kl fd;kA vr% mlds }kjk izLrqr ;g izkFkZuk&i= vUrxZr vkns'k 9 fu;e 13 fl0iz0la0 vk/kkjghu gksus ls vLohdkj fd;s tkus ;ksX; gSA vkns'k vr% izkFkhZ;k dh vksj ls izLrqr vkosnu vUrxZr vkns'k 9 fu;e 13 fl0iz0la0 ,rn~}kjk vLohdkj dj [kkfjt fd;k tkrk gSA lgh@& ¼vt; dqekj 'kkjnk½ ftyk U;k;k/kh'k fljksghA* 2. Mr. B.L. Bhati, learned counsel for the appellant/wife submitted that the learned court below has grossly erred in upholding the ex parte divorce decree without taking note of the fact that on earlier occasion the application filed by the appellant-wife under Section 9 of the H.M. Act, 1955, for restitution of conjugal rights was allowed viz. in Case No.280/2004- Anita v. Shyamlal, on 15.01.2008 and, in view of this, the learned court below ought to have at least heard the case on merits and allowed proper opportunity to defend the said divorce application and the divorce petition should have been decided on merits after hearing both the parties. in Case No.280/2004- Anita v. Shyamlal, on 15.01.2008 and, in view of this, the learned court below ought to have at least heard the case on merits and allowed proper opportunity to defend the said divorce application and the divorce petition should have been decided on merits after hearing both the parties. He further submitted that despite the of second marriage contracted by the respondent, the issue relating permanent alimony in favour of appellant and her son of this wedlock, still survives and, therefore, the case deserves to be restored to the learned court below for trial on merits. 3. On the other hand, Mr. Bharat Singh, learned counsel for the respondent supported the impugned order and argued that since the summons were properly served on the appellant-wife, and if she chose to remain ex parte before the learned court below, the learned trial court cannot be faulted in passing the ex parte divorce decree and in rejecting the application filed by the appellant under Order 9, Rule 11 CPC. 4. Having heard the learned counsel for the parties, this Court is of the opinion that the matrimonial disputes and cases stand on slightly different footings than the normal civil disputes relating to property. When the courts are dealing with human beings in the matrimonial disputes the same yardstick in strict sense, cannot be applied in such matrimonial disputes and cases. 5. Before passing an ex parte divorce decree, the learned court below ought to have seen the record properly and ensured the service of summons on the appellant/wife; and even after first service of summons the appellant remained ex parte and absent for which, there could be some valid reason for her non-appearance, there was no prohibition against a second service of summons on the appellant and when another Family Court had already passed a decree for restitution of conjugal rights in favour of appellant u/s 9 of the H.M. Act and this fact was very much brought to the notice of the learned court below, in such circumstances the passing of ex parte divorce decree was not called for, as has been done by the learned court below. Whatever lis now survives either for restoration of matrimony or payment of permanent alimony, as the case may be, the learned court below ought to have considered the case on merits and the ends of justice cannot be said to have met with such ex parte divorce decree and affirmation thereof by the rejection of application filed by the appellant under Order 9, Rule 13 CPC. 6. Accordingly and in view of above, the present misc. appeal of the appellant-wife, thus succeeds and the same is hereby allowed, and setting aside the order dated 25.04.2011 as well as the ex parte divorce decree dated 18.07.2009, the case is restored back to learned trial court of District Judge, Sirohi for holding fresh trial and decide the divorce petition on merits. The parties may appear before the learned District Judge, Sirohi, in the first instance on 10.08.2015 and thereafter the case may be decided expeditiously, preferably within a period of six months from that date. No costs. A copy of this order be sent to the concerned parties and the learned District Judge, Sirohi, forthwith. Appeal allowed.