Ex-parte Divorce decree set aside denied

IN THE GAUHATI HIGH COURT,
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

MATRIMONIAL APPEAL NO.4 OF 2016

APPELLANT:
Mrs. Chanda Biswas,
W/o Sri Biswajit Purkayastha,
F-3, Pubali Estate, GMCH Road,Guwahati-781005.

RESPONDENT:
Sri Biswajit Purkayastha,
S/o Late Bipul Chandra Purkayastha,
Department of Chemistry
Assam Engineering College,Guwahati-781013

BEFORE
HON’BLE THE CHIEF JUSTICE MR. AJIT SINGH
HON’BLE MR. JUSTICE MANOJIT BHUYAN

For the appellant: Mr.SC Biswas and Mr.G Taye,
learned counsel for the appellant.
For the respondent: Mr. D Sarma, learned counsel for the respondent.

Date of hearing & judgment: 23.5.2017

JUDGMENT AND ORDER

(Ajit Singh, C.J.)

This appeal under Section 19 of the Family Court Act, 1984 has been filed by Mrs. Chandra Biswas , challenging the impugned order dated 16.09.2015 passed by the Principal Judge, Family Court No.2, Guwahati, Kamrup, Assam, in Miscellaneous(J) Case No. 98/2014 rejecting the Miscellaneous Case under Order 9 Rule 13 of the Court of Civil Procedure for setting aside the impugned judgement and decree dated 03.10.2012 passed by the said court in F.C.(Civil) No. 488/2011, granting decree of divorce by dissolving the marriage between the appellant and her husband-Biswajit Purkayastha.

2. The brief facts are in these. Respondent- husband of the appellant-wife filed a divorce case F.C. (Civil)No. 488/2011 before the Principal Judge, Family Court No.2 at Guwahati, Assam, against the appellant, the notice of the case was duly served on the appellant. But she did not contest the case as a result of which the Family Court by the impugned ex-parte judgement and decree dated 03.10.2012 dissolved the marriage between the parties. The appellant came to know about the ex-parte decree on 04.05.13 when she came to Guwahati from Alipore, West Bengal. Then she filed the Matrimonial Appeal No. 28/2014 before this Court with a petition for condonation of delay. This Court vide order dated 27.06.2014 gave liberty to the appellant to file an application under Order 9 Rule 13 of the Code of Civil Procedure, on the withdrawal of the said appeal. Consequently, the appellant filed a petition under Order 9 Rule 13 of the Code of Civil Procedure contending inter-alia that when she received the notice from the Court, she met her respondent -husband to know as to why he had filed the divorce case and also told him that she would file a case for maintenance, but the respondent convinced her that he would withdraw the divorce case and take her back home. Respondent also requested the appellant not to appear in the case and contest the same for the welfare of the child as well as not to file any case for maintenance. Being convinced, the appellant did not contest the divorce case, but she was surprised to know about the ex-parte decree subsequently and hence she was prevented with sufficient cause from appearing in the case and as such the ex-parte decree may be set aside.

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3. The Family Court upon hearing the parties was pleased to reject the petition of the appellant on the ground that the reason for non-appearance in the court was not sufficient in as much as notice was duly served on her and she had full knowledge of the pendency of the litigation. The Family Court observed that the appellant is a highly educated lady with qualification of M.Sc, B.Ed. and as such, it was expected from her that when she received the notice, it was incumbent on her to have appeared before the court and she ought to have informed the Court that a talk for amicable settlement was going on between the parties. But instead, she preferred not to appear before the Court.

The Family Court also viewed that the parties were residing separately since the year 2004. Besides, the appellant did not also give the details regarding the date and place where she met her the respondent after receipt of notice from the Court and hence, the non-appearance of the appellant in the proceeding was deliberate and as such the Family Court rejected the petition of the appellant, declining to set aside the ex-parte judgment and decree dated 03.01.2012.

4. After hearing the learned Counsel for the parties and perusing the records, we find that the notice of the case was duly served on the appellant and in spite of service of the same, she did not appear and contest the case. She had full knowledge of pendency of the litigation and the reasons cited for her non-appearance is not sufficient cause for which she was prevented from appearing in the Family Court. The Family Court has rightly observed that the appellant did not make any mention in her petition as to when and where she met her husband and requested not to proceed with the divorce case. Besides, the records also divulge that no petition for maintenance was also filed by her. Therefore, the reason for not appearing in the court in spite of service of notice is not convincing and cannot be said to be a sufficient reason. We are also informed that the respondent has already remarried and that the appellant has sufficient means of maintaining herself since she is earning a sum of Rs.50,000/- per month as teacher. The parties have been residing separately since the year 2004 and there is no chance of reunion. As such, we are of the considered view that the Family Court has rightly passed the impugned order rejecting the prayer of appellant declining to set aside the ex-parte judgement and order dated 3.1.2012 calling for interference.

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5. Accordingly, the appeal stands dismissed being devoid of merit.

JUDGE CHIEF JUSTICE

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