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2023 DIGILAW 1037 (RAJ)

Arvind Kumar Bhatnagar v. Neeti Bhatnagar

2023-05-05

VIJAY BISHNOI, YOGENDRA KUMAR PUROHIT

body2023
JUDGMENT : Mr. Yogendra Kumar Purohit, J. - The instant civil misc. appeal under Section 19 of the Family Court Act, 1984 and Section 28 of the Hindu Marriage Act, 1955 has been preferred by the appellant against the order dated 21.10.2022 passed by learned Judge, Family Court No.2, Jodhpur ("for short "Family Court") in Misc. Case No.3/2022 dismissing an application preferred by the appellant under Order 9 Rule 4 & 8 CPC read with section 151 CPC seeking restoration of the divorce petition which was dismissed for default of appearance and non-prosecution. 2. Brief facts giving rise to the present appeal as depicted from the record are that the marriage between the appellant and the respondent was solemnized according to the Hindu Customs and Rites on 25.01.1991 at Lucknow and out of the said wedlock, two children were born namely Niharika and Neelay. However, on account of differences cropped up between the parties, they decided to dissolve their marriage by mutual consent and a compromise was also arrived at between the parties. Accordingly, the appellant and the respondent jointly preferred a petition on 4.10.2018 before the Family Court under Section 13B of the Hindu Marriage Act seeking a decree of divorce by mutual consent, which was registered on 5.10.2018 and ordered to be posted for 8.4.2019 awaiting second motion and for evidence of the parties. However, neither the appellant nor his counsel (Nyaya Mitra) appeared before the Family Court after 5.10.2018 despite several dates fixed in the matter. Ultimately, on 1.9.2021 when the appellant and his counsel (Nyaya Mitra) did not appear, the Family Court dismissed the petition in default of appearance and non-prosecution. 3. Aggrieved by the said order dated 1.9.2021 dismissing the divorce petition in default of appearance and for non-prosecution, the appellant preferred application for restoration of the petition as aforesaid stating therein that the appellant resides at Dubai, United Arab Emirates and presently he is residing at Belgium and since the Corona Virus outbreak was in vogue, he could not appear before the Family Court on 1.9.2021. It is stated that upon receipt of the information from respondent on 15.12.2021, he came to know about dismissal of the divorce petition for non-prosecution vide order dated 1.9.2021 and thereafter has filed the present application for restoration on 3.1.2022. It is stated that upon receipt of the information from respondent on 15.12.2021, he came to know about dismissal of the divorce petition for non-prosecution vide order dated 1.9.2021 and thereafter has filed the present application for restoration on 3.1.2022. It was also submitted that the non-appearance of the appellant on the date fixed was bonafide and not intentional, and accordingly prayer was made to restore the divorce petition. 4. A reply to the application preferred by the appellant seeking restoration of the divorce petition, was filed by the respondent and seriously opposed the application and prayed to reject the same. 5. The learned Family Court after hearing both the parties, by a detailed order rejected the restoration application on 21.10.2022. Hence, this appeal. 6. We have heard learned counsel for the parties finally at this stage and carefully gone through the material available on record. 7. Learned counsel appearing for the appellant contended that the learned Family Court has seriously erred in dismissing the divorce petition for non-prosecution, as a matter of fact, after expiry of six months' period, even in absence of the appellant, the Family Court should have passed a decree of divorce. It is submitted that the Family Court was not justified in rejecting the application seeking restoration of the divorce petition while observing that under Section 13B of the Hindu Marriage Act, a petition is filed by the parties seeking divorce jointly, therefore, the same cannot be restored on the application filed by the appellant alone. It is submitted that the appellant has sufficiently explained the reasons for his non-appearance before the Family Court on the date fixed, therefore, the divorce petition should have been restored by the Family Court. Learned counsel further argued that the time prescribed under Section 13B of the Hindu Marriage Act is only directory and not mandatory and the same could be waived. 8. In support of his contentions, learned counsel for the appellant has relied upon the decisions of the Hon'ble Supreme Court in the matter of Shillpa Sailesh v. Varun Sreenivasan, Transfer Petition (Civil) No.1118/2014, decided on 1.5.2023; Amardeep Singh v. Harveen Kaur, Civil Appeal No.11158/2017 decided on 12.9.2017; Amit Kumar v. Suman Beniwal, Civil Appeal No.7650/2021 decided on 11.12.2021; Rafiq and Another v. Munshilal & Another (1981) 2 SCC 788 ; Goswami Krishna Murarilal Sharma v. Dhan Prakash and Ors. (1981) 4 SCC 574 . (1981) 4 SCC 574 . Reliance was also placed on the two decisions rendered by Bombay High Court in the case of Prakash Alumal Kalandari v. Jahnavi Prakash Kalandari, 2012 (1) CCC 600 (Bom.); Ajay Bhikulal Gujar v. Shyamali Ajay Gujar AIR 2022 Bombay 94; and three decisions of this Court in the matter of Pragya Chordia v. Prateek Tater 2022 AIR CC 677 (Raj); Smt. Suman v. Surendra Kumar AIR 2003 Rajasthan 155 and Anil Khatwani v. Nistha Khatwani, S.B.Civil Misc. Appeal No.1250/2008, decided on 10.5.2012. 9. Per contra, Mr. Sanjeev Johari, learned Senior Counsel contended on behalf of the respondent-caveator that the divorce petition which was dismissed for non-prosecution can only be restored on joint application filed by the parties consenting for decree of divorce. It is further submitted that under the provisions of Section 13B of the Hindu Marriage Act, after expiry of the six months period, a decree of divorce can be passed with the consent of the parties, however, since the respondent later on was not consenting to the divorce, therefore, no decree of divorce can be passed in the matter. Learned counsel has relied upon two decisions of the Hon'ble Supreme Court in the matter of Smruti Pahariya v. Sanjay Pahariya (2009) 13 SCC 338 and Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234 . It is further submitted that no consent was given by the respondent for filing the application for restoration of the divorce petition. The appellant did not appear before the Family Court after 5.10.2018 despite several dates fixed in the matter, therefore, the learned Family Court was justified in rejecting the restoration application. On these submissions, learned counsel submitted that the order impugned passed by the learned Family Court does not require any interference by this Court. 10. We have carefully considered the submissions raised by learned counsel for the parties and gone through the case law cited. 11. In the instant case, the order dated 21.10.2022 passed by the Family Court rejecting the application filed by the appellant under Order 9 Rule 4 and 8 CPC r/w section 151 CPC for restoration of the petition seeking decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, which dismissed for non-prosecution, is under challenge. 11. In the instant case, the order dated 21.10.2022 passed by the Family Court rejecting the application filed by the appellant under Order 9 Rule 4 and 8 CPC r/w section 151 CPC for restoration of the petition seeking decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, which dismissed for non-prosecution, is under challenge. A petition under Section 13B of the Hindu Marriage Act seeking decree of divorce by mutual consent is filed jointly under the signatures of both the parties i.e. husband and wife. The divorce petition has been dismissed by the Family Court for the non-appearance of both the parties. In such a situation, the application seeking restoration of the divorce petition should have been filed before the Family Court by the parties jointly and since the restoration application was filed by the appellant alone, in the considered opinion of this Court, it was not maintainable and therefore, on this count alone, without making discussion on any other points raised and the case law cited, we are not inclined to interfere with the order impugned passed by the Family Court. 12. Accordingly, the misc. appeal is dismissed.