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Smt Neha Revadiya vs Avdesh Kumar on 15 February, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
ORDER
D.B. Civil Miscellaneous Appeal No. 4446/ 2016
Smt. Neha Revadiya W/o Avdesh Diwaker, D/o Rajendra Revadiya

aged about 29 years R/o House No.315, Scheme No.8, Alwar.

—-Petitioner/Appellant
Versus
Avdesh Kumar S/o Babulal Berwa aged about 29 years R/o A-1,

Kishan Marg, Barkat Nagar, Tonk Fatak, Jaipur.

—-Non-Petitioner/Respondent

__
For Appellant : Mr. Mohit Gupta, Adv.

For Respondent : Mr. Rajendra Singh Tanwar, Adv.
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE DINESH CHANDRA SOMANI
Date of Order :: 15/02/2018
Reportable
Per Dinesh Chandra Somani J.

The instant appeal has been preferred by the petitioner-

appellant under Section 19 of the Family Courts Act, 1984 against

the order dated 15.07.2016 passed by the Judge, Family Court

No.2, Jaipur (hereinafter referred as “the Family Court”) in case

No.179/2015, whereby the application filed by the petitioner-

appellant under Order 9 Rule 13 read with Section 151 CPC for

setting aside the exparte decree dated 11.01.2013, was

dismissed.

Skeletal material facts necessary for disposal of this appeal

are that the respondent was married to the appellant on
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06.05.2011 according to Hindu rites. The parties herein lived

together for sometime and thereafter they separated. Out of the

wedlock, the petitioner-appellant gave birth to a child in

September, 2012. On 30.05.2012, the non-petitioner respondent

herein had filed a petition in Family Court No.1, Jaipur for

dissolution of marriage seeking for grant of a decree of divorce on

the ground of cruelty. The said petition was allowed and exparte

decree was passed on 11.01.2013 by Family Court No.1, Jaipur.

Thereafter, on 24.05.2013, the petitioner-appellant had filed

an application under Order 9 Rule 13 read with Section 151 CPC

along with an application for condonation of delay under Section 5

of the Limitation Act in Family Court No.1, Jaipur, which was later

on transferred to the Family Court No.2, Jaipur. It is stated in the

application that after the marriage, the appellant became

pregnant, she went to her father’s house at Alwar because the

respondent used to harass and torture the appellant.

It is also stated that during pregnancy, she became

physically weak and ill and was in continuous observation and care

of the doctors. During this period a summon sent by the Court at

her address of Alwar was received by her family member, who

kept it aside without information to the appellant due to her

critical condition, and mother of the appellant who was residing in

Indore took the appellant-wife to Indore in an ambulance, where

she gave birth to a child in September, 2012.

It is further stated that the appellant-wife had no knowledge

of the exparte decree passed against her on 11.01.2013. In May,

2013 the appellant returned from Indore to her father’s house at
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Alwar, there she came to know about the notice of divorce petition

sent by the Family Court. It is further stated that thereafter the

appellant-wife sent a member of her family to the Court to find

out the status of the divorce petition and then she came to know

that the divorce petition has been decreed exparte on 11.01.2013.

It is further stated that in above circumstances, the appellant-wife

was not able to appear before the Court and prayed to condone

the delay caused in filing the application under Order 9 Rule 13

CPC and to set aside the exparte decree dated 11.01.2013 passed

against her and also to grant her an opportunity of hearing.

The respondent-husband filed reply to the application

denying all the material averments of the application and stated

therein that summons of the divorce petition were duly served

upon the appellant-wife and she had complete knowledge of the

case. It is also stated that the appellant was not sick and no

medical certificate has been submitted by her in this regard. It is

further stated that the appellant gave birth to a child in

September, 2012 whereas the judgment in divorce petition was

passed on 11.01.2013. It is further stated that the application has

been filed to frustrate the re-marriage of the respondent-husband,

solemnized after the decree of divorce and prayed to dismiss the

application for setting aside the exparte decree.

After hearing the parties, learned Family Court vide

impugned order dated 15.07.2016, dismissed the application filed

by the appellant-wife under Order 9 Rule 13 read with Section 151

CPC for setting aside the exparte decree dated 11.01.2013.

Being aggrieved and dissatisfied with the impugned order
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dated 15.07.2016, the appellant-wife has preferred this appeal.

Heard learned counsel for the parties.

Mr. Mohit Gupta, learned counsel for the appellant has

contended that the learned Family Court has committed serious

error in not considering the fact that at the time of service of

summon, the appellant was physically weak and on family way

with advance stage of pregnancy and that apart complications also

arose in her foetus therefore mother of the appellant took her to

Indore for medical treatment, where she delivered a child in the

month of September, 2012.

Learned counsel for the appellant also submitted that it is

settled law that a litigant should not be deprived of a reasonable

opportunity of hearing and for that reason, the Family Court was

required to take a pragmatic view and the exparte decree passed

against the appellant-wife is liable to be set aside and to provide

her reasonable opportunity of hearing in the matter.

Per contra, Mr. Rajendra Singh Tanwar, learned counsel for

the respondent-husband strongly opposed the contentions of

learned counsel for the appellant-wife and supported the

impugned order passed by the learned Family Court. Learned

counsel contended that the summons of the divorce petition

issued by the Family Court were duly served upon the appellant

and she has complete knowledge of the case but she deliberately

and negligently didn’t choose to appear in the Court to contest the

divorce petition.

Learned counsel for the respondent-husband also submitted

that the appellant did not produce any evidence regarding her
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alleged sickness. According to the appellant, she gave birth to a

child in September, 2012 and the divorce petition was decided on

11.01.2013, therefore she had ample opportunity to appear in the

Family Court to contest the divorce petition but she did not do so

and filed the present application for setting aside the decree only

to frustrate the re-marriage of the respondent-husband

solemnized after the decree of divorce.

We gave our anxious consideration to rival submissions of

learned counsel for the parties and perused the record of the case.

In support of the application for setting aside the exparte

decree, the appellant-wife examined herself as AW-1 and deposed

that she was at the advance stage of pregnancy and sick during

pendency of the divorce petition, therefore she could not attend

the Court. She also deposed that she got the knowledge of the

exparte decree from her father after she gave birth to a child.

During cross-examination, the appellant-wife deposed that the

child was born on 18.09.2012.

In rebuttal, the respondent-husband examined himself and

his brother Adarsh Kishore as NAW-1 and NAW-2 respectively. The

respondent-husband deposed that notice of the divorce petition

filed by him was served upon the appellant-wife but despite

service, she did not attend the Court, therefore exparte decree

was passed against her on 11.01.2013. Thereafter, he sent a

notice to the wife informing about the divorce but she did not

receive the notice. In cross-examination, the respondent-husband

denied the suggestion that the wife did not come to the Court due

to pregnancy.

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NAW-2 Adarsh Kishore deposed that he does not know

whether the notice of divorce petition was served upon the

appellant-wife or not. In cross-examination, the witness denied all

the suggestions put to him due to lack of knowledge.

The learned Family Court dismissed the application for

setting aside the exparte decree on two counts i.e. (i) the notice

of divorce petition sent to the appellant-wife through registered

post was received by her and duly signed acknowledgment thereof

is there on record. The appellant-wife did not produce any legal

evidence to show that she was prevented by any sufficient cause

from appearing in the Court to contest the divorce petition filed by

the husband, (ii) after passing of the exparte decree of divorce

and expiry of period of limitation prescribed for filing an appeal,

the respondent-husband has contracted a second marriage and he

is living with his second wife.

Case of the appellant-wife is that during pendency of the

divorce petition she was sick and pregnant, thus she could not

appear in the Family Court and because of critical condition of the

appellant-wife, mother of the appellant-wife took her to Indore in

an ambulance where the mother was residing. Thereafter, the

appellant-wife gave birth to a child in Indore on 18.09.2012. The

appellant-wife stayed in Indore for 6-7 months. After return from

Indore in May-2013, father of the appellant-wife told her about

the notice of the Court. Thereafter, she got the matter inquired

through a member of her family and came to know about exparte

decree. Thereafter she filed the application on 24.05.2013 for

setting aside the same. Thus, the application for setting aside the
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exparte decree has been filed after three months of the date of

the decree. The respondent-husband has not denied the fact that

the appellant gave birth to a child on 18.09.2012 in Indore.

From perusal of record of the divorce petition, it reveals that

the respondent-husband has filed the petition on 30.05.2012

which was registered on 05.06.2012 and next date 21.08.2012

was fixed for summoning the appellant-wife. The notice for

21.08.2012 was issued and the same was sent to the appellant-

wife through registered post. It also reveals that the

acknowledgment of post signed by the appellant-wife is there on

record. Despite service, the appellant-wife did not appear, thus

exparte proceedings were initiated. Thereafter statements of the

respondent-husband and his witness were recorded and the

learned Family Court passed exparte judgment and decree against

the appellant-wife on 11.01.2013.

In view of the above, it is established that the appellant-wife

delivered a child on 18.09.2012, thus it can be inferred that she

was pregnant when the divorce petition was filed, notice was

issued and served upon her. Therefore it can be presumed that

she was prevented from appearing in the Court on 21.08.2012

due to pregnancy, which was sufficient for not attending the Court

when called upon to do so. It is also not disputed that at the

relevant time, mother of the appellant-wife was residing in Indore.

It is pleaded case of the respondent-husband that the

appellant-wife has left the matrimonial home on 13.02.2012 and

went to her father’s house at Alwar. The respondent-husband filed

the divorce petition on 30.05.2012 and notices were issued for
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21.08.2012, exparte proceedings were initiated against the

appellant-wife on 21.09.2012, evidence of respondent-husband

and his witness was recorded on next date 19.12.2012 and ex-

parte judgment and decree against the appellant-wife were passed

on 11.01.2013. The above facts depict that the appellant-wife was

pregnant on the alleged date of leaving her matrimonial home and

the respondent-husband deliberately chose to file the divorce

petition during pregnancy of the appellant-wife. As noticed above,

she was at the advance stage of pregnancy and sick on

21.08.2012, for which date the notice of hearing was issued by

the learned Family Court. After about three months of passing of

the ex-parte decree, the appellant-wife has filed the application

under Order 9 Rule 13 CPC. The respondent-husband has

contracted the second marriage as alleged, soon after the exparte

decree. Circumstances of the case indicates that this is a case of

mischief which the respondent-husband has committed

deliberately and took uncalled for benefits for ill-health of the

appellant-wife. The learned Family Court has to keep in mind the

extent of the stake of the parties and keeping all the questions in

mind, the delay in filing the application under Order 9 Rule 13 CPC

should have been considered. But these factors were not

considered by the learned Family Court while deciding the

application for setting aside the exparte decree.

There is nothing on record to disbelieve the case of the

appellant-wife that due to her critical condition in pregnancy, her

mother took her to Indore in an ambulance, where she gave birth

to a child and stayed there for 6-7 months and thereafter she
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returned to her father’s house in Alwar in the month of May, 2013.

In (2000) 2 SCR 97 G.P. Srivastava versus R.K. Raizada

Ors., Hon’ble the Apex Court held that the words “was

prevented by any sufficient cause from appearing” must be

liberally construed to enable the Court to do complete justice

between the parties particularly when no negligence or inaction is

imputable to the erring party.

In this way, the appellant-wife has offered a reasonable

explanation for not recording her presence in learned Family Court

on 21.08.2012 and on subsequent dates of hearing. Similarly, the

appellant-wife has also offered a reasonable explanation for not

filing the application for setting aside the exparte decree within

prescribed period of limitation, therefore the finding of the learned

Family Court on this count is not sustainable.

The respondent-husband has pleaded that the application

has been filed to frustrate his re-marriage solemnized after the

decree of divorce. It is pertinent to note that the respondent-

husband did not disclose the date of contracting the second

marriage and name of his second wife in his reply to the

application. It is also pertinent to note that the respondent-

husband did not produce any legal evidence regarding second

marriage. Even, neither the respondent-husband himself nor his

brother Adarsh Kishore (NAW-2) uttered a word about the second

marriage in their deposition recorded by the learned Family Court.

Therefore, the finding of learned Family Court with regard to

contracting the second marriage after expiry of period of limitation

prescribed for filing of an appeal, is not sustainable.

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In Lata Kamat versus Vilas reported in A.I.R.1989 S.C.

1477, Hon’ble the Apex Court has referred to the decision of

Madras High Court given in Vathsala versus N. Manoharan

reported in A.I.R. 1969 Mad. 405 and held as under:-

“Even though it may not have been
unlawful for the husband to have married
immediately after the High Court’s decree for
no appeal as of right lies from the decree of
the High Court to this Court, still it was for
the respondent to make sure whether an
application for special leave had been filed in
this Court and he could not by marrying
immediately after the High Courts’ decree,
deprive the wife of the chance of presenting
a special leave petition to this Court. If a
person does so, he takes a risk and could not
ask the Court to revoke the special leave on
that ground.”

Considering the above, on parity of reasoning the principle

made applicable to special leave petition could be extended to

proceedings for setting aside the exparte decree of divorce also,

which is a remedy provided under the law. For the sake of

argument, even if it is assumed that the respondent-husband has

contracted a second marriage after passing of the exparte decree

of divorce dated 11.01.2013, the proceedings under Order 9 Rule

13 CPC does not render infructuous.

In view of the discussions made above, the approach of the

learned Family Court is completely stereo typed. The appellant-

wife has made out a case for setting aside the exparte judgment

and decree of divorce dated 11.01.2013. Findings of the learned
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Family Court to the contrary are based on misreading and

misappreciation of the evidence, thus are illegal and perverse,

therefore cannot be sustained.

Consequently, the appeal is allowed, the application filed by

the appellant-wife under Order 9 Rule 13 read with Section 151

CPC for setting aside the exparte judgment and decree dated

11.01.2013 is allowed and the said judgment and decree is set

aside. The learned Family Court will now proceed with the divorce

petition in accordance with law. Record of the Family Court be sent

back forthwith.

(DINESH CHANDRA SOMANI),J. (AJAY RASTOGI),J.

Manish/

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