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2018 DIGILAW 727 (RAJ)

SEEMA KAUR v. GURPREET SINGH @ GUGA SINGH

2018-03-08

GOPAL KISHAN VYAS, RAMCHANDRA SINGH JHALA

body2018
JUDGMENT : G.K. Vyas, J. The instant civil misc. appeal has been filed by appellant-wife Smt. Seema Kaur, under Section 19 of the Family Court Act against the judgment dated 08.06.2017 passed by learned Judge, Family Court, Hanumangarh in Civil Misc. Case No.54/2016, whereby application filed by the appellant, Smt. Seema Kaur, under Order 9 Rule 13 CPC for setting aside the exparte divorce decree dated 02.09.2015, was rejected on the ground of delay. 2. Learned counsel for the appellant submits that the divorce application under Section 13 of the Hindu Marriage Act, 1955 was filed on 23.07.2013 by the respondent-husband seeking divorce and the said divorce application was allowed by the learned Judge, Family Court, Hanumangarh vide its exparte decree dated 02.09.2015. It is further argued that along with application under Section 5 of the Limitation Act was also filed to condone the delay occurred in filing application under Order 9 Rule 13 CPC, wherein it was specifically pleaded that she was regularly appearing in the court and prayed for time to file reply to the divorce application on 24.11.2014. Again on 20.12.2014 she appeared and sought time to file reply but assertions were made in the application by her that she was not having knowledge of the proceedings of the divorce petition. 3. The learned Judge, Family Court, Hanumangarh rejected the application on the ground that she has not approached the court with clean hands, therefore, she is not entitled to any relief and refused to condone the delay or to accept application filed by the appellant under Order 9 Rule 13 CPC. 4. Learned counsel for the appellant submits that appellant is a poor lady and she filed an application under Section 9 of the H.M. Act in Punjab, in which respondent-husband was directed to keep her with him and in pursuance of that direction, the respondent-husband took her to Jaialmer and thereafter committed fraud while obtaining exparte decree taking advantage of her absence in the court. However, this fact has not been considered by the learned court below, it is thus submitted that the order dated 08.06.2017 may kindly be set aside and the application filed under Order 9 Rule 13 CPC may kindly be allowed. 5. However, this fact has not been considered by the learned court below, it is thus submitted that the order dated 08.06.2017 may kindly be set aside and the application filed under Order 9 Rule 13 CPC may kindly be allowed. 5. On the other hand, learned counsel appearing on behalf of respondent submits that no error has been committed by the learned court below in rejecting the prayer for condoning the delay because the appellant did not approach the learned court below with clean hands, therefore, no interference is called for. 6. After hearing the learned counsel for the parties, it emerges from the facts that respondent is not disputing the fact that order was passed at Punjab upon application filed under Section 9 of the H.M. Act for restitution of conjugal rights. It is also not disputed by the respondents that he never took the appellant at Jaisalmer, therefore, at the time of deciding the application the learned court below was under obligation to take lenient view so as to condone the delay in filing the application under Order 9 Rule 13 CPC to set aside the exparte divorce decree. 7. In view of above, the order impugned dated 08.06.2017 passed by learned Judge, Family Court, Hanumangarh in Civil Misc. Case No.54/2016 is hereby quashed and set aside and the case is remitted to the learned Judge, Family Court, Hanumangarh to decide the application filed by the appellant under Order 9 Rule 13 CPC for setting aside the exparte divorce decree dated 02.09.2015 on merit. 8. The instant civil misc. appeal is, accordingly, disposed of.