HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 5712/2017
Kavita Jain, W/o Shri Ankit Jain, D/o Shri Gyan Chand Jain, B/c
Jain, R/o Flat No. 303, IIIrd Floor, Navneet Tower, 5/2, Purana
Palasiya, Indore (Madhya Pradesh)
—-Appellant
Versus
Ankit Jain S/o Shri N.C. Pahariya, aged about 40 years, B/c Jain,
R/o House No. 175-C, Milap Nagar, Tonk Road, Jaipur
—-Respondent
For Appellant(s) : Shri Dinesh Kala
For Respondent(s) : Shri Mahendra Kumar Sharma
HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
21/08/2019
This appeal seeks to challenge the judgement of the Family
Court No.1, Jaipur dated 27.9.2017 by which petition for divorce
filed by the respondent-husband under Section 13(1A)(1B) of the
Hindu Marriage Act, 1955 has been allowed by ex-parte
judgement and decree dated 27.09.2017.
Shri Dinesh Kala, learned counsel for the appellant has
submitted that the matter was fixed on 8.8.2017 before the Family
Court. He along with his associate Shri Ripu Sudan Singh Advocate
appeared before the Family Court. The Reader of the Court has
however informed that Presiding officer was on leave and,
therefore, he has fixed 11.10.2017 as the next date. He requested
the Reader to take the adjournment application on record, but the
Reader told that there is no need for filing the same as no adverse
order was likely to be passed on that date and the next date has
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already been fixed. It is contended that the date 11.10.2017 was
written on the Sarvarak as the next date. Accordingly, he informed
the respondent about the next date and also entered the same in
his diary. On 11.10.2017, when Shri Dinesh Kala appeared before
the Family court along with the non-applicant, he was informed
that no such case was fixed in the cause list of that date. Upon
enquiry, it transpired that the matter was fixed on 22.9.2017, on
which date, it was ordered to proceed ex-parte against the
appellant and finally the ex-parte judgement and decree was
passed on 27.9.2017 after recording the statement of sole witness
i.e. applicant-respondent as PW1. The appellant had no
opportunity to cross examine him and nor she could produce her
evidence. On coming to know about the same, the appellant
immediately filed application for obtaining certified copy of
impugned judgement and decree dated 27.9.2017 and also
certified copy of the Sarvarak, on which 11.10.2017 was indicated
as next date and thereafter removed, but certified copy of the
Sarvarak was not supplied.
Shri Mahendra Kumar Sharma, learned counsel for the
respondent has opposed the appeal and submitted that in the first
place, Shri Dinesh Kala did not appear on 8.8.2017 and secondly
no such adjournment application dated 8.8.2017 as has been
produced before this Court, was ever filed. According to him, this
is fabricated document. It is submitted that the respondent does
not want to live with the appellant at Jaipur and insists on staying
at Indore and therefore no useful purpose would be served by
remanding the matter to the Family Court. Alternatively, learned
counsel submitted that if at all the matter is remanded, the Family
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Court may be directed to decide the same in a time bound
manner.
This Court while issuing notice of the appeal, called for the
record. Perusal of the Sarvarak indeed shows that 11.10.2017 was
indicated as the date, which was scored out and then 22.9.2017
was also shown as the date, which was also scored out and
thereafter 27.9.2017 has been indicated to be the date on the
Sarvarak. The order sheet of the case indicates that the matter
was first of all taken up on 13.6.2017 and the Court issued notice
to the appellant-wife, returnable by 8.8.2017. On 8.8.2017, the
presence of the respondent was shown. However, it was
mentioned that service on the respondent has been effected, but
the Presiding Officer was on leave and, therefore, the matter was
fixed for appropriate orders on 22.9.2017. On 22.9.2017 since it
was noted that receipt of the respondent on the registered A.D.
notice has been received, the service was treated as sufficient.
The name of appellant-wife was called out and since no one
appeared, the Court directed the matter to proceed ex-parte and
fixed the matter on 27.9.2017, on which date, the statement of
the respondent was recorded, his evidence was concluded and the
impugned ex-parte judgement and decree was passed.
In the facts of the case, the appellant has made out a case
for remand of the matter to the Family Court so as to enable her
to file her reply/written statement to the divorce petition filed by
the respondent and also adduce her evidence.
In the opinion of this Court, it is always appropriate to decide
the matter on merits by granting opportunity to both the parties
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to adduce their evidence and to cross examine each other’s
witnesses. The aforenoted facts persuade us to set aside the
impugned ex-parte judgement and decree dated 27.9.2017
passed by the Family Court and remand the matter to the Family
Court. We order accordingly.
Learned counsel for the respondent at this stage submitted
that the respondent would like to produce his parents also as
witnesses. The respondent is permitted to produce maximum two
more witnesses and file their affidavit on the next date before the
Family court and keep himself as also two other witnesses ready
for cross examination by the appellant-wife. The evidence of the
respondent shall be concluded maximum within one month from
the date next fixed by this Court. The appellant in the meantime
shall file her reply to the divorce petition and also file affidavits of
maximum three witnesses and the documents if any also, within
one month thereafter. Cross examination of all such witnesses
shall be concluded within maximum two months thereafter. The
Family Court shall make endeavour to decide the main matter
within six months from the next date fixed by this Court.
The appeal is accordingly allowed.
The parties are directed to appear before the Family Court on
6.9.2019.
A copy of this order be forwarded to the Family Court No.1,
Jaipur for compliance. Record be also sent back immediately.
(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J
RS/37
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