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2026 DIGILAW 23 (RAJ)

Nirmala, W/o Vijay Kumar v. Vijay Kumar Gehlot, S/o Roopa Ram

2026-01-14

ARUN MONGA, YOGENDRA KUMAR PUROHIT

body2026
ORDER : 1. Appeal herein is directed against the ex-parte judgment and decree dated 05.03.2024 passed by learned Family Court No.1, Bikaner whereby the marriage between appellant – wife and the respondent – husband was dissolved under Section 13 of the Hindu Marriage Act, 1955. 2. The respondent/husband of the appellant, filed a petition under Section 13 of the Hindu Marriage Act, 1955 seeking dissolution of marriage on the grounds of cruelty and desertion. Notices were issued to the appellant on 15.03.2023. Thereafter, upon hearing only the counsel for the respondent and in the absence of the appellant, the learned Trial Court proceed ex parte to allow the petition. Thus an ex parte decree of dissolution of marriage was passed vide judgment dated 05.03.2024. 3. In the aforesaid factual background, we have heard the rival contentions and perused the case record. 4. Learned Counsel for the appellant argued that the learned Family Court has grossly erred in passing the judgment and decree dated 05.03.2024 without properly appreciating the material available on record and, therefore, failed to exercise the jurisdiction vested in it in accordance with law, thereby committing material irregularity. 4.1. He submits that from a bare perusal of the impugned judgment and decree dated 05.03.2024, read with the pleadings and documents on record, it is evident that the learned Family Court proceeded in a highly hasty manner without appreciating the pleadings of the parties and the documents placed on record. He contends that, considering the facts and circumstances of the case and the nature of the issues involved, the learned Family Court ought to have considered the reply filed by the appellant and the averments made therein in their true and proper perspective. 4.2. Learned Counsel further argued that the appellant had remained present before the learned Family Court on every date of hearing, except on 01.02.2024, when she was unable to appear due to illness and even her counsel could not appear. He contends that instead of granting one reasonable opportunity, the learned Family Court proceeded ex parte against the appellant in a hasty manner, which is evident from the order sheets. He submits that after proceeding ex parte on 01.02.2024, the matter was posted on 16.02.2024, on which date certain documents were produced by the respondent and were taken on record without any formal application and without obtaining leave of the Court. 4.3. He submits that after proceeding ex parte on 01.02.2024, the matter was posted on 16.02.2024, on which date certain documents were produced by the respondent and were taken on record without any formal application and without obtaining leave of the Court. 4.3. He further contends that thereafter the matter was posted on 21.02.2024, when statements of witnesses were recorded without affording any opportunity of cross-examination to the appellant, and the matter was straightaway posted for final arguments on 05.03.2024. He submits that the manner in which the learned Family Court conducted the trial clearly reflects arbitrariness, undue haste, and non-adherence to due process of law. He contends that the impugned judgment and decree have been passed with a pre-occupied mind and in violation of settled principles of law and, therefore, cannot be sustained. 4.4. Learned Counsel further argued that the petition for dissolution of marriage was filed by Respondent No.1 under Section 13 (1) of the Hindu Marriage Act, 1955, and that from a bare perusal of the said provision and the material on record, it is evident that the respondent utterly failed to prove the allegations made in the petition. He submits that no concrete evidence whatsoever was led by the respondent in support of his allegations and that the allegations are false, baseless, and concocted, as clearly demonstrated in the reply filed by the appellant. He contends that the learned Family Court passed the impugned judgment on mere presumptions and assumptions, completely overlooking the reply and defence of the appellant. 4.5. He further contends that although the burden of proof of the issues framed was rightly placed upon the applicant/respondent, the learned Family Court grossly erred in deciding the issues in favour of the respondent without proper proof. He submits that the learned Family Court relied entirely upon the examination-in- chief of the respondent and his witnesses, without any cross- examination, and ignored the reply filed by the appellant. He argues that denial of opportunity to cross-examine the witnesses amounts to a gross violation of the principles of natural justice and renders the impugned judgment patently illegal. 4.6. Learned Counsel further argued that the learned Family Court failed to provide sufficient opportunity to the appellant to lead evidence and prove her defence. He argues that denial of opportunity to cross-examine the witnesses amounts to a gross violation of the principles of natural justice and renders the impugned judgment patently illegal. 4.6. Learned Counsel further argued that the learned Family Court failed to provide sufficient opportunity to the appellant to lead evidence and prove her defence. He contends that the findings recorded by the learned Family Court are arbitrary, unreasonable, and unsupported by evidence, and therefore cannot be sustained in the eyes of law. 4.7. He further submits that certain documents were produced by the respondent on 16.02.2024 without filing any formal application and without obtaining leave of the Court, yet the same were illegally taken into consideration while passing the impugned judgment and decree. He contends that this amounts to a gross illegality apparent on the face of the record. 4.8. Learned Counsel further contended that the appellant had categorically stated in her reply that she never abandoned the respondent and that the respondent and his family members had continuously subjected her to cruelty and dowry demands. He submits that specific incidents, including the demand of Rs. 1,00,000/- and a motorcycle on 12.11.2017, and the physical assault upon refusal, were clearly pleaded. He further submits that due to such inhuman acts, the appellant suffered serious medical issues. 4.9. He contends that in relation to the said incidents, FIR No. 87/2021 was registered at Police Station Sadar under Sections 498 -A, 406 and 323 IPC , in which a charge-sheet has been filed, cognizance has been taken, and the criminal proceedings are pending. He submits that the learned Family Court completely ignored these crucial and material facts while passing the impugned judgment and decree. 4.10.Lastly, Learned Counsel argued that the learned Family Court failed to appreciate that the matter involved a serious and delicate issue affecting the lives of two individuals. He contends that allowing the petition under Section 13 of the Hindu Marriage Act solely on one-sided allegations, without proof and without affording reasonable opportunity to the appellant, is contrary to law. He submits that the ex parte approach adopted by the learned Family Court is wholly unsustainable, illegal, and liable to be interfered with by this Hon’ble Court. 5. Per contra learned counsel for the respondent/husband argues that the appellant/wife had enough opportunities to defend herself. He submits that the ex parte approach adopted by the learned Family Court is wholly unsustainable, illegal, and liable to be interfered with by this Hon’ble Court. 5. Per contra learned counsel for the respondent/husband argues that the appellant/wife had enough opportunities to defend herself. Having herself chosen to abandon the proceedings, she cannot be, at this stage, allowed to take advantage of her own conduct. 6. For ready reference, the English translation of the order- sheets appended with appeal paper book is reproduced as below:- Dated: March 15, 2023 The Petitioner is present in person. The counsel for the Petitioner is present. The Clerk’s report has been perused. Let the matter be duly registered. The Petitioner has moved an application stating that they hereby appoint Mr. Hanuman Singh Rajpurohit, Advocate, as counsel to provide legal assistance. The Process Fee (Talbana), notice forms, and registered post envelopes with Acknowledgment Due (AD) have been submitted. Let the Respondent be summoned via ordinary process as well as by Registered Post. The case file is to be presented on April 18, 2023, pending service of summons upon the Respondent. Dated: April 18, 2023 The parties are present. The matter is adjourned to May 24, 2023, for the filing of the Written Statement/Reply. Dated: May 24, 2023 The parties and their respective counsel are present. The case file is to be presented on June 22, 2023, for the filing of the Written Statement/Reply. Dated: June 22, 2023 The Petitioner is absent. The Respondent is present. The counsel for the parties are present. The Presiding Officer (PM) is on leave. A final opportunity is hereby granted to the Petitioner for the filing of the Reply. The case file is to be presented on July 14, 2023, for the said purpose. Dated: July 14, 2023 The Petitioner is absent; however, their counsel is present. The Respondent is present along with their counsel and has prayed for an extension of time to file the Reply. It is directed that the Reply be filed mandatorily on the next date. The matter is posted for September 11, 2023, for the filing of the Reply. Dated: September 11, 2023: The parties, along with their respective counsel, are present. A final opportunity for filing the Reply had been granted to the Petitioner during previous hearings. It is directed that the Reply be filed mandatorily on the next date. The matter is posted for September 11, 2023, for the filing of the Reply. Dated: September 11, 2023: The parties, along with their respective counsel, are present. A final opportunity for filing the Reply had been granted to the Petitioner during previous hearings. The case file is to be presented on September 12, 2023, for the filing of the Reply. Dated: September 9, 2023: The parties along with the counsel appeared. Reply filed and copy provided. The case file be listed on 04.10.2023 for framing of issues. Dated: October 4, 2023: The petitioner was not present, whereas the respondent was present. The counsel for the parties were present. The Presiding Officer is on leave. The case file be listed on 12.10.2023 for framing of issues. Dated: October 12, 2023: The parties were not present. Their counsel were present. Issues were framed. The matter be listed on 16.11.2023 for petitioner's evidence. Dated: November 16, 2023: The petitioner was present, whereas the respondent was not present. The counsel for the parties were present. Affidavits for examination-in-chief were submitted on behalf of the petitioner for witnesses AW1 Vijay Kumar, AW2 Aaskaran Gehlot and AW3 Sampatal Tanwar. Let copies of the same be provided. The case file be listed on 12.12.2023 for cross-examination of the evidence. Dated: December 12, 2023: The parties were not present. Their counsel were present. The case file be listed on 09.01.2024 for petitioner's evidence. Dated: January 09, 2024: The parties were not present. Their counsel were present. The case file be listed on 01.02.2024 for petitioner's evidence. Dated: February 01, 2024 at 3.15 PM The petitioner and the counsel were present. The respondent and their counsel remained absent despite being called. Therefore, ex-parte proceedings are hereby initiated against the respondent. The case file be listed on 16.02.2024 for petitioner's ex-parte evidence. Dated: February16, 2024: The petitioner's counsel were present. Clear documents for Form No. 3 were submitted and taken on record. The case file be listed on 21.02.2024 for petitioner's evidence. Dated: February 21, 2024: The petitioner along with counsel were present. During the examination of evidence, witness AW1 Vijay Kumar got his statement recorded. The affidavits of AW2 and AW3 have already been produced previously. The ex- parte evidence of the petitioner is complete. The case file be listed on 05.03.2024 for ex-parte arguments. Dated: February 21, 2024: The petitioner along with counsel were present. During the examination of evidence, witness AW1 Vijay Kumar got his statement recorded. The affidavits of AW2 and AW3 have already been produced previously. The ex- parte evidence of the petitioner is complete. The case file be listed on 05.03.2024 for ex-parte arguments. The original Aadhaar card was returned after perusal. Dated: March 05, 2024: The petitioner Vijay Kumar was present along with the counsel. Ex-parte proceedings are underway against the respondent. Ex-parte arguments were heard. The judgment was dictated and pronounced separately. As per the Order: The petition filed by the petitioner Vijay Kumar against the respondent Nirmala under Section 13 (1) of the Hindu Marriage Act ( HMA ) for dissolution of marriage is hereby accepted ex-parte. It is declared that the marriage solemnized between petitioner Vijay Kumar and respondent Nirmala on 12.11.2011 stands dissolved as of today, 05.03.2024. Let the decree be prepared in accordance with the judgment. A copy of the decree be sent to the respondent via registered post at the petitioner's expense. The case file, having been decided, be consigned to the record room after due compliance. Dated: March 05, 2024: The decree sheet has been signed. Dated: March 11, 2024 (Compliance Note) Sir, In compliance with the order dated 05.03.2024, a copy of the ex parte decree has been dispatched to the respondent via registered post. Dispatch no. of which is 99 dated 11.03.2024.” 7. The aforesaid order sheets reflects that the appellant was proceeded ex parte on 01.02.2024 and thereafter, the Trial Court rather showed undue alacrity in concluding the trial on the very next two hearings, i.e. 16.02.2024 and 21.02.2024, by keeping the matter before it in such short interregnums perhaps being unduly persuaded by the respondent-husband to not let the appellant come and seek recalling of the ex parte order and thus concluded the evidence and kept it for pronouncement of final judgment and decree which was eventually pronounced on 05.03.2024 in a short span of about 30 days from the date the appellant was proceeded ex parte. 8. No doubt, justice delayed is justice denied, but at the same time, justice hurried is justice buried. Instant is the case of latter category as the appellant was not given fair opportunity to defend herself. 8. No doubt, justice delayed is justice denied, but at the same time, justice hurried is justice buried. Instant is the case of latter category as the appellant was not given fair opportunity to defend herself. We are unable to persuade ourselves with the undue speed in which the trial was summarily concluded. 9. In the premise, impugned order is set aside and the petition filed by the respondent is revived to its original status a day prior to proceeding ex parte against the appellant vide order dated 01.02.2024. The ex parte decree and judgment dated 05.03.2024 are both set aside and quashed. The divorce petition filed by the respondent/husband is remanded back to the learned Family Court. The trial to take place in accordance with law by granting opportunity to the appellant. 10. Parties to appear before the Trial Court on 13.02.2026. 11. Accordingly, the appeal is dismissed.