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2021 DIGILAW 218 (RAJ)

Gurpreet Singh @ Guga Singh v. Seema Kaur

2021-01-27

RAMESHWAR VYAS, SANGEET LODHA

body2021
JUDGMENT Vyas, J. - The instant appeal has been preferred by the appellant-husband Gurpreet Singh under Section 19 of the Family Courts Act, 1984 (afterwards referred as 'the Act of 1984') against the order dated 04.04.2019 passed by Family Court, Hanumangarh (afterwards referred to as 'Family Court') in Misc. Civil Case No. 54/2016, whereby, the application filed by the respondent -Seema Kaur under Order IX, Rule 13 CPC, for setting aside the ex parte decree dated 02.09.2015, was accepted. 2. Brief facts of the case are that the appellant-husband filed an application under Section 13 of the Hindu Marriage Act, 1955 against his wife respondent - Smt. Seema Kaur on the ground of cruelty and desertion before the Family Court on 23.07.2013. After service of notice, respondent Seema Kaur made her appearance on 26.09.2014 and sought time to file reply. On 23.04.2015 the case was transferred from Family Court to the District Court, Hanumangarh. On 27.08.2015 as the respondent was not present, District Judge ordered to proceed ex parte against the respondent. On 26.09.2014 respondent filed an application before the Family Court to provide legal aid to her since she is unable to defend her case without the help of an Advocate. No order was passed on the said application and ignoring the application the Family Court proceeded ex parte against the respondent. 3. On the next date i.e. 02.09.2015 three witnesses, from the appellant's side, were examined and on the same day ex parte decree of divorce was passed against the respondent-wife. 4. Being aggrieved by the ex parte decree respondent-wife filed an application under Order IX, Rule 13 CPC and same was rejected on 08.06.2017, against which, D.B. Civil Misc. Appeal No. 2659/2017 was filed, in which, the co-ordinate Bench of this Court while accepting the appeal set aside the order rejecting the application under Order IX, Rule 13 CPC and observed as under:- "After hearing 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 ex parte divorce decree." 5. In pursuance of the order dated 08.06.2017, the Family Court by order dated 04.04.2019 while allowing the application under Order IX, Rule 13 CPC set aside the ex parte divorce decree passed in Civil Misc. Case No. 320/2013 (Gurpreet Singh vs. Seema Kaur). 6. Aggrieved by the impugned order dated 04.04.2019 the present appeal has been filed by appellant-husband. 7. It was submitted by learned counsel for the appellant that the respondent was present before the Family Court on 26.09.2014 with her lawyer; she has been constantly seeking time to file reply; looking to the lack of interest in defending divorce application, the Family Court had no option but to initiate ex parte proceeding against the respondent. 8. It was further submitted by learned counsel that the Family Court without looking to the facts and circumstances of the case in its right perspective, proceeded to pass a non-speaking order dated 04.04.2019; the respondent was fully aware of divorce application preferred by the appellant and there is no sufficient cause, which prevented her from appearing in the Court; the application under Order IX, Rule 13 CPC was not filed within limitation; the respondent was not diligent while filing the application. It is prayed that the impugned order be set aside. 9. On the contrary it was submitted by learned counsel for the respondent that the appellant obtained the ex parte divorce decree fraudulently; the Family Court did not commit any error in setting aside the ex parte decree; the application was allowed by a well reasoned speaking order, which does not warrant any interference by this Court. 10. We have heard learned counsel for the parties and perused the record. 11. 10. We have heard learned counsel for the parties and perused the record. 11. As per provisions of Section 13 of the Act of 1984 no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner, provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae. 12. In this case the respondent sought services of amicus curiae by filing an application before the Family Court on 26.09.2014; no order was passed on the said application by the Family Court, whereas, as per proviso to Section 13 of the Act of 1984 it was required of the Family Court to provide assistance of legal expert as amicus curiae if it considers it necessary in the interest of justice. 13. In the considered opinion of this Court the said irregularity alone is sufficient to set aside the decree of divorce passed against the respondent. 14. Apart from this, the provisions of Section 9 of the Act of 1984 have also not been followed by the Family Court. As per the provisions of Section 9 of the Act of 1984 in every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding. 15. On perusal of file of Civil Misc. Case No.320/2013 of Section 13 of the Act of 1955 it reveals that no endeavour was made by the Judge, Family Court to persuade the parties in arriving at a settlement. It appears that learned Judge, Family Court did not even look into the Family Courts Act before passing the divorce decree ex parte. 16. It is also relevant to mention here that on the application filed by respondent-wife under Section 9 of the Act of 1955 a decree was passed against the husband to keep his wife alongwith him. The appellant-husband kept silent regarding compliance of the above order. 16. It is also relevant to mention here that on the application filed by respondent-wife under Section 9 of the Act of 1955 a decree was passed against the husband to keep his wife alongwith him. The appellant-husband kept silent regarding compliance of the above order. As per the averments made in the application under Order IX, Rule 13 CPC by the respondent-wife, the appellant took her with him to Jaisalmer and they lived together for some time at Jaisalmer. Afterwards he obtained ex parte divorce decree fraudulently. In view of the fact that no explanation has been given by the appellant on the said aspect, the allegation made by the wife regarding obtaining ex parte divorce decree fraudulently cannot be ignored outrightly. 17. The contentions raised by learned counsel for the appellant to set aside the impugned order are not acceptable. The Family Court was right in allowing the application under Order IX, Rule 13 CPC. 18. In view of the above factual and legal position, the appeal filed by the appellant-husband is devoid of any merit and the same is, therefore, dismissed.