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2022 DIGILAW 1061 (ALL)

Renu Yadav v. Amit Kumar Yadav

2022-07-11

SADHNA RANI (THAKUR), SUNITA AGARWAL

body2022
JUDGMENT : 1. Heard learned counsel for the parties and perused the record. 2. This appeal is directed against the order dated 09.03.2022 passed by the Family Court, Gautam Buddh Nagar for rejection of the applications 17-Ga-2 & 19-Ga-2, the application under Section 5 of the Limitation Act accompanied with the application under Order 9 Rule 7 of the Code of Civil Procedure for recall of the order dated 03.04.2019 to proceed with the suit ex-parte, on account of non appearance of the appellant/defendant on the date fixed before the Family Court. In the order dated 03.04.2019 to proceed ex-parte, it was noted by the Family Court that the appellant/defendant therein was not present and no written settlement was filed by her. 3. A perusal of the order sheet of the Family Court brought on record by means of the supplementary affidavit filed today indicates that on the presentation of the suit on 10.09.2018, the plaintiff/defendant was directed to take steps for service of summons upon the defendant. On the next date fixed, further time was granted to do pairvi within seven days and 14.01.2019 was fixed for written statement. The appellant herein/defendant/wife had put in appearance before the Family Court on 14.01.2019 itself and time was granted to file written statement while fixing 03.04.2019 by the Family Court. On 03.04.2019, the defendant wife could not appear and written statement was not filed by her. The decision was, therefore, taken to proceed ex-parte and 10.07.2019 was fixed by the Family Court. On 10.07.2019, nothing happened as the Presiding Officer was on training and the matter was posted on 13.08.2019 for ex-parte evidence. On the said date itself, the applications 17-Ga-2 and 18-Ga-2 were filed by the defendant wife to seek recall of the order dated 03.04.2019 to proceed in the suit ex-parte. The said applications were contested by the plaintiff/respondent herein for a period of more than three years and they have been rejected vide order dated 09.03.2022, which is subject matter of challenge in the present appeal. 4. It is argued by the learned counsel for the respondent/plaintiff that the present appeal is not maintainable, the order dated 09.03.2022 being an interlocutory order. 5. 4. It is argued by the learned counsel for the respondent/plaintiff that the present appeal is not maintainable, the order dated 09.03.2022 being an interlocutory order. 5. This submission of the learned counsel for the respondent herein is found misconceived, in as much as, on account of dismissal of the applications 17-Ga-22 and 19-Ga-22 by the order dated 09.03.2022, the right of the plaintiff to contest the suit for divorce filed by the respondent husband has been taken away. The order, thus, causes serious prejudice to the appellant and amounts to final determination of the dispute being raised in the application 17-Ga-2 and 19-Ga-2. The order dated 09.03.2022 which decides the issue in relation to the appellant wife to contest the suit filed by her husband cannot be said to an interlocutory order, so as to keep it out of the purview of section 19 of the Family Court Act' 1984. 6. The appeal is, thus, held maintainable. 7. The second submission of the learned counsel for the respondent husband is that since the appellant wife has failed to file the written statement within the time period allowed under Order 8 Rule 1 CPC, the Family Court was right in proceeding for hearing of the suit ex-parte in accordance with the Order 8 Rule 10 CPC and the appellant herein cannot seek recall of the order dated 03.04.2019 to proceed ex-parte. 8. As far as the provision of Order 9 Rule 7 CPC, it is argued by the learned counsel for the respondent that since no written statement was filed by the appellant wife on the date fixed before the Family Court, the Family Court had no jurisdiction to recall the order passed under Order 8 Rule 10 CPC to give opportunity to the wife to file written statement. 9. Testing this submission of the learned counsel for the respondent, we may record that the Family Courts have been constituted under the Family Court Act' 1984 with the social objectives of promoting conciliation and secure speedy settlement of disputes relating to marriage and family affairs. With this laudable object, the Family Courts have been established to exercise the jurisdiction and power conferred on it in accordance with the Section 3 of the Family Court Act' 1984. With this laudable object, the Family Courts have been established to exercise the jurisdiction and power conferred on it in accordance with the Section 3 of the Family Court Act' 1984. The primary duty of the Family Court as prescribed in Section 9 is to make endeavour in the first instance to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the dispute or proceeding and to achieve the said purpose, it has to follow the rules made by the High Court. Sub-Section (2) of Section 9 as contained in Chapter IV of the Family Court Act' 1984 which provides for the procedure to be adopted by the Family Court, states that where it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceeding for such a period as it thinks fit to enable attempts to be made to effect such a settlement. 10. Section 10 (1) as contained in Chapter IV further states that subject to the provision of the Family Court Act' 1984 and the rules made therein, the provisions of the Code of Civil Procedure' 1908 shall apply to the suits and proceedings before the Family Court and for the purposes of determination of the proceeding before it, the Family Court shall be deemed to be a civil court and shall have all the powers of such court. 11. Sub-Section (3) of Section 10, however, puts a caveat on the same when it provides that nothing in Sub section (1) of Section 10 prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by the one of the party and denied by the other. 12. Sub-Section (3) of Section 10, thus, provides adequate leverage of the Family Court to mould its procedure to achieve the laudable object of the Family Court Act' 1984 to promote conciliation and secure speedy settlement of disputes related to the family affairs/marriage. 12. Sub-Section (3) of Section 10, thus, provides adequate leverage of the Family Court to mould its procedure to achieve the laudable object of the Family Court Act' 1984 to promote conciliation and secure speedy settlement of disputes related to the family affairs/marriage. The strict procedure prescribed under the CPC as applicable to the Family Court for deciding the dispute before it as per Sub-Section (1) of Section 10, does not prohibit or restrict the Family Court in any manner to make all efforts to put end to the dispute before it, by conciliation. 13. In light of the above provisions, looking to the record of the present case, the order sheet of the Family Court, Gautam Buddh Nagar in the instant proceeding, we find that the Family Court has acted adversely to the objectives of the Act' 1984 in proceeding ex-parte on the third date fixed by it in the divorce suit filed by the respondent husband though the appellant has put in appearance on the first date fixed after the steps were taken by the respondent-husband. The family court has erred in proceeding ex-parte as wife did not file the written statement on 03.04.2018, which was the first date fixed for filing of the written statement. The Family Court Judge ought to have given opportunity to the respondent wife to come forward so as to make an effort for reconciliation between the parties, which was its duty while proceeding with the matter in the first instance as per Section 9 of the Family Court Act' 1984. Instead of doing so, the Family Court Judge acting like an adversarial court proceeded to decide the divorce suit ex-parte and, thereafter, the matter had been prolonged for a period of more than three years on the issue of recall. 14. For this Act of the Family Court, the object of the provision of Section 21(b) of the Hindu Marriage Act' 1955 has also suffered seriously which contemplates early dispute of marriage suits. Further by passing ex-parte order in the family dispute, the Family Court had prohibited one party from appearing before it and, thus, closed the door of reconciliation between the parties at the beginning. Further by passing ex-parte order in the family dispute, the Family Court had prohibited one party from appearing before it and, thus, closed the door of reconciliation between the parties at the beginning. The object of creation of the Family Court to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or the proceeding before it has, thus, been defeated severely in the present case. 15. Taking note of the said facts before us, having perused the order sheet and the manner in which the Family Court had proceeded in the divorce suit, we find it just and proper to set aside the order dated 09.03.2022 for giving opportunity to the appellant wife/defendant to contest the suit filed by her husband to seek divorce, or to enter into the process of reconciliation, to seek solution of her problems. 16. Learned counsel for the appellant states that the appellant undertakes to file written statement on the next date fixed i.e. 14.07.2022 and that she shall cooperate in all further proceeding including the proceeding for reconciliation, if initiated by the Family Court, in the facts and circumstances of the present case. 17. It is, therefore, provided that on the next date fixed i.e. 14.07.2022, the appellant/defendant/wife shall file the written statement in view of the undertaking given by her and the Family Court, thereafter, shall proceed with the matter independently without being influenced by any of the observations made herein above. 18. However, in case of non cooperation of the appellant wife in the proceeding before the Family Court, in future, it would be open for it to take an appropriate decision keeping in view of the laudable object of the Family Court Act and Section 21 (B) of the Hindu Marriage Act' 1955. 19. Subject to the above observations and directions, while setting aside the order dated 09.03.2022, the present appeal is allowed. 20. No order as to cost.