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2018 DIGILAW 535 (RAJ)

Neha Revadiya W/o Avdesh Diwaker v. Avdesh Kumar S/o Babulal Berwa

2018-02-15

AJAY RASTOGI, DINESH CHANDRA SOMANI

body2018
JUDGMENT : Dinesh Chandra Somani, J. The instant appeal has been preferred by the petitioner-appellant under Section 19 of the Family Courts Act, 1984 against the order dated 15.07.2016 passed by the Judge, Family Court No.2, Jaipur (hereinafter referred as “the Family Court”) in case No.179/2015, whereby the application filed by the petitioner-appellant under Order 9 Rule 13 read with Section 151 CPC for setting aside the exparte decree dated 11.01.2013, was dismissed. 2. Skeletal material facts necessary for disposal of this appeal are that the respondent was married to the appellant on 06.05.2011 according to Hindu rites. The parties herein lived together for sometime and thereafter they separated. Out of the wedlock, the petitioner-appellant gave birth to a child in September, 2012. On 30.05.2012, the non-petitioner respondent herein had filed a petition in Family Court No.1, Jaipur for dissolution of marriage seeking for grant of a decree of divorce on the ground of cruelty. The said petition was allowed and exparte decree was passed on 11.01.2013 by Family Court No.1, Jaipur. 3. Thereafter, on 24.05.2013, the petitioner-appellant had filed an application under Order 9 Rule 13 read with Section 151 CPC along with an application for condonation of delay under Section 5 of the Limitation Act in Family Court No.1, Jaipur, which was later on transferred to the Family Court No.2, Jaipur. It is stated in the application that after the marriage, the appellant became pregnant, she went to her father’s house at Alwar because the respondent used to harass and torture the appellant. 4. It is also stated that during pregnancy, she became physically weak and ill and was in continuous observation and care of the doctors. During this period a summon sent by the Court at her address of Alwar was received by her family member, who kept it aside without information to the appellant due to her critical condition, and mother of the appellant who was residing in Indore took the appellant-wife to Indore in an ambulance, where she gave birth to a child in September, 2012. 5. It is further stated that the appellant-wife had no knowledge of the exparte decree passed against her on 11.01.2013. In May, 2013 the appellant returned from Indore to her father’s house at Alwar, there she came to know about the notice of divorce petition sent by the Family Court. 5. It is further stated that the appellant-wife had no knowledge of the exparte decree passed against her on 11.01.2013. In May, 2013 the appellant returned from Indore to her father’s house at Alwar, there she came to know about the notice of divorce petition sent by the Family Court. It is further stated that thereafter the appellant-wife sent a member of her family to the Court to find out the status of the divorce petition and then she came to know that the divorce petition has been decreed exparte on 11.01.2013. It is further stated that in above circumstances, the appellant-wife was not able to appear before the Court and prayed to condone the delay caused in filing the application under Order 9 Rule 13 CPC and to set aside the exparte decree dated 11.01.2013 passed against her and also to grant her an opportunity of hearing. 6. The respondent-husband filed reply to the application denying all the material averments of the application and stated therein that summons of the divorce petition were duly served upon the appellant-wife and she had complete knowledge of the case. It is also stated that the appellant was not sick and no medical certificate has been submitted by her in this regard. It is further stated that the appellant gave birth to a child in September, 2012 whereas the judgment in divorce petition was passed on 11.01.2013. It is further stated that the application has been filed to frustrate the re-marriage of the respondent-husband, solemnized after the decree of divorce and prayed to dismiss the application for setting aside the exparte decree. 7. After hearing the parties, learned Family Court vide impugned order dated 15.07.2016, dismissed the application filed by the appellant-wife under Order 9 Rule 13 read with Section 151 CPC for setting aside the exparte decree dated 11.01.2013. 8. Being aggrieved and dissatisfied with the impugned order dated 15.07.2016, the appellant-wife has preferred this appeal. 9. Heard learned counsel for the parties. 10. Mr. 8. Being aggrieved and dissatisfied with the impugned order dated 15.07.2016, the appellant-wife has preferred this appeal. 9. Heard learned counsel for the parties. 10. Mr. Mohit Gupta, learned counsel for the appellant has contended that the learned Family Court has committed serious error in not considering the fact that at the time of service of summon, the appellant was physically weak and on family way with advance stage of pregnancy and that apart complications also arose in her foetus therefore mother of the appellant took her to Indore for medical treatment, where she delivered a child in the month of September, 2012. 11. Learned counsel for the appellant also submitted that it is settled law that a litigant should not be deprived of a reasonable opportunity of hearing and for that reason, the Family Court was required to take a pragmatic view and the exparte decree passed against the appellant-wife is liable to be set aside and to provide her reasonable opportunity of hearing in the matter. 12. Per contra, Mr. Rajendra Singh Tanwar, learned counsel for the respondent-husband strongly opposed the contentions of learned counsel for the appellant-wife and supported the impugned order passed by the learned Family Court. Learned counsel contended that the summons of the divorce petition issued by the Family Court were duly served upon the appellant and she has complete knowledge of the case but she deliberately and negligently didn’t choose to appear in the Court to contest the divorce petition. 13. Learned counsel for the respondent-husband also submitted that the appellant did not produce any evidence regarding her alleged sickness. According to the appellant, she gave birth to a child in September, 2012 and the divorce petition was decided on 11.01.2013, therefore she had ample opportunity to appear in the Family Court to contest the divorce petition but she did not do so and filed the present application for setting aside the decree only to frustrate the re-marriage of the respondent-husband solemnized after the decree of divorce. 14. We gave our anxious consideration to rival submissions of learned counsel for the parties and perused the record of the case. In support of the application for setting aside the exparte decree, the appellant-wife examined herself as AW-1 and deposed that she was at the advance stage of pregnancy and sick during pendency of the divorce petition, therefore she could not attend the Court. In support of the application for setting aside the exparte decree, the appellant-wife examined herself as AW-1 and deposed that she was at the advance stage of pregnancy and sick during pendency of the divorce petition, therefore she could not attend the Court. She also deposed that she got the knowledge of the exparte decree from her father after she gave birth to a child. During cross-examination, the appellant-wife deposed that the child was born on 18.09.2012. 15. In rebuttal, the respondent-husband examined himself and his brother Adarsh Kishore as NAW-1 and NAW-2 respectively. The respondent-husband deposed that notice of the divorce petition filed by him was served upon the appellant-wife but despite service, she did not attend the Court, therefore exparte decree was passed against her on 11.01.2013. Thereafter, he sent a notice to the wife informing about the divorce but she did not receive the notice. In cross-examination, the respondent-husband denied the suggestion that the wife did not come to the Court due to pregnancy. 16. NAW-2 Adarsh Kishore deposed that he does not know whether the notice of divorce petition was served upon the appellant-wife or not. In cross-examination, the witness denied all the suggestions put to him due to lack of knowledge. 17. The learned Family Court dismissed the application for setting aside the exparte decree on two counts i.e. (i) the notice of divorce petition sent to the appellant-wife through registered post was received by her and duly signed acknowledgment thereof is there on record. The appellant-wife did not produce any legal evidence to show that she was prevented by any sufficient cause from appearing in the Court to contest the divorce petition filed by the husband, (ii) after passing of the exparte decree of divorce and expiry of period of limitation prescribed for filing an appeal, the respondent-husband has contracted a second marriage and he is living with his second wife. 18. Case of the appellant-wife is that during pendency of the divorce petition she was sick and pregnant, thus she could not appear in the Family Court and because of critical condition of the appellant-wife, mother of the appellant-wife took her to Indore in an ambulance where the mother was residing. Thereafter, the appellant-wife gave birth to a child in Indore on 18.09.2012. The appellant-wife stayed in Indore for 6-7 months. Thereafter, the appellant-wife gave birth to a child in Indore on 18.09.2012. The appellant-wife stayed in Indore for 6-7 months. After return from Indore in May-2013, father of the appellant-wife told her about the notice of the Court. Thereafter, she got the matter inquired through a member of her family and came to know about exparte decree. Thereafter she filed the application on 24.05.2013 for setting aside the same. Thus, the application for setting aside the exparte decree has been filed after three months of the date of the decree. The respondent-husband has not denied the fact that the appellant gave birth to a child on 18.09.2012 in Indore. 19. From perusal of record of the divorce petition, it reveals that the respondent-husband has filed the petition on 30.05.2012 which was registered on 05.06.2012 and next date 21.08.2012 was fixed for summoning the appellant-wife. The notice for 21.08.2012 was issued and the same was sent to the appellant-wife through registered post. It also reveals that the acknowledgment of post signed by the appellant-wife is there on record. Despite service, the appellant-wife did not appear, thus exparte proceedings were initiated. Thereafter statements of the respondent-husband and his witness were recorded and the learned Family Court passed exparte judgment and decree against the appellant-wife on 11.01.2013. 20. In view of the above, it is established that the appellant-wife delivered a child on 18.09.2012, thus it can be inferred that she was pregnant when the divorce petition was filed, notice was issued and served upon her. Therefore it can be presumed that she was prevented from appearing in the Court on 21.08.2012 due to pregnancy, which was sufficient for not attending the Court when called upon to do so. It is also not disputed that at the relevant time, mother of the appellant-wife was residing in Indore. 21. It is pleaded case of the respondent-husband that the appellant-wife has left the matrimonial home on 13.02.2012 and went to her father’s house at Alwar. The respondent-husband filed the divorce petition on 30.05.2012 and notices were issued for 21.08.2012, exparte proceedings were initiated against the appellant-wife on 21.09.2012, evidence of respondent-husband and his witness was recorded on next date 19.12.2012 and exparte judgment and decree against the appellant-wife were passed on 11.01.2013. The respondent-husband filed the divorce petition on 30.05.2012 and notices were issued for 21.08.2012, exparte proceedings were initiated against the appellant-wife on 21.09.2012, evidence of respondent-husband and his witness was recorded on next date 19.12.2012 and exparte judgment and decree against the appellant-wife were passed on 11.01.2013. The above facts depict that the appellant-wife was pregnant on the alleged date of leaving her matrimonial home and the respondent-husband deliberately chose to file the divorce petition during pregnancy of the appellant-wife. As noticed above, she was at the advance stage of pregnancy and sick on 21.08.2012, for which date the notice of hearing was issued by the learned Family Court. After about three months of passing of the ex-parte decree, the appellant-wife has filed the application under Order 9 Rule 13 CPC. The respondent-husband has contracted the second marriage as alleged, soon after the exparte decree. Circumstances of the case indicates that this is a case of mischief which the respondent-husband has committed deliberately and took uncalled for benefits for ill-health of the appellant-wife. The learned Family Court has to keep in mind the extent of the stake of the parties and keeping all the questions in mind, the delay in filing the application under Order 9 Rule 13 CPC should have been considered. But these factors were not considered by the learned Family Court while deciding the application for setting aside the exparte decree. 22. There is nothing on record to disbelieve the case of the appellant-wife that due to her critical condition in pregnancy, her mother took her to Indore in an ambulance, where she gave birth to a child and stayed there for 6-7 months and thereafter she returned to her father’s house in Alwar in the month of May, 2013. 23. In (2000) 2 SCR 97 G.P. Srivastava versus R.K. Raizada & Ors., Hon’ble the Apex Court held that the words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. 24. In this way, the appellant-wife has offered a reasonable explanation for not recording her presence in learned Family Court on 21.08.2012 and on subsequent dates of hearing. 24. In this way, the appellant-wife has offered a reasonable explanation for not recording her presence in learned Family Court on 21.08.2012 and on subsequent dates of hearing. Similarly, the appellant-wife has also offered a reasonable explanation for not filing the application for setting aside the exparte decree within prescribed period of limitation, therefore the finding of the learned Family Court on this count is not sustainable. 25. The respondent-husband has pleaded that the application has been filed to frustrate his re-marriage solemnized after the decree of divorce. It is pertinent to note that the respondent-husband did not disclose the date of contracting the second marriage and name of his second wife in his reply to the application. It is also pertinent to note that the respondent-husband did not produce any legal evidence regarding second marriage. Even, neither the respondent-husband himself nor his brother Adarsh Kishore (NAW-2) uttered a word about the second marriage in their deposition recorded by the learned Family Court. Therefore, the finding of learned Family Court with regard to contracting the second marriage after expiry of period of limitation prescribed for filing of an appeal, is not sustainable. 26. In Lata Kamat versus Vilas reported in A.I.R.1989 S.C. 1477, Hon’ble the Apex Court has referred to the decision of Madras High Court given in Vathsala versus N. Manoharan reported in A.I.R. 1969 Mad. 405 and held as under:- “Even though it may not have been unlawful for the husband to have married immediately after the High Court’s decree for no appeal as of right lies from the decree of the High Court to this Court, still it was for the respondent to make sure whether an application for special leave had been filed in this Court and he could not by marrying immediately after the High Courts’ decree, deprive the wife of the chance of presenting a special leave petition to this Court. If a person does so, he takes a risk and could not ask the Court to revoke the special leave on that ground.” 27. Considering the above, on parity of reasoning the principle made applicable to special leave petition could be extended to proceedings for setting aside the exparte decree of divorce also, which is a remedy provided under the law. Considering the above, on parity of reasoning the principle made applicable to special leave petition could be extended to proceedings for setting aside the exparte decree of divorce also, which is a remedy provided under the law. For the sake of argument, even if it is assumed that the respondent-husband has contracted a second marriage after passing of the exparte decree of divorce dated 11.01.2013, the proceedings under Order 9 Rule 13 CPC does not render infructuous. 28. In view of the discussions made above, the approach of the learned Family Court is completely stereo typed. The appellant-wife has made out a case for setting aside the ex-parte judgment and decree of divorce dated 11.01.2013. Findings of the learned Family Court to the contrary are based on misreading and mis-appreciation of the evidence, thus are illegal and perverse, therefore cannot be sustained. 29. Consequently, the appeal is allowed, the application filed by the appellant-wife under Order 9 Rule 13 read with Section 151 CPC for setting aside the exparte judgment and decree dated 11.01.2013 is allowed and the said judgment and decree is set aside. The learned Family Court will now proceed with the divorce petition in accordance with law. Record of the Family Court be sent back forthwith.