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Kavita Jain vs Ankit Jain on 21 August, 2019


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)
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

For Appellant(s) : Shri Dinesh Kala
For Respondent(s) : Shri Mahendra Kumar Sharma





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


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


A copy of this order be forwarded to the Family Court No.1,

Jaipur for compliance. Record be also sent back immediately.



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