HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
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.
Avdesh Kumar S/o Babulal Berwa aged about 29 years R/o A-1,
Kishan Marg, Barkat Nagar, Tonk Fatak, Jaipur.
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
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
Skeletal material facts necessary for disposal of this appeal
are that the respondent was married to the appellant on
(2 of 11)
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
(3 of 11)
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
(4 of 11)
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
Learned counsel for the respondent-husband also submitted
that the appellant did not produce any evidence regarding her
(5 of 11)
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
(6 of 11)
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
(7 of 11)
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
(8 of 11)
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
(9 of 11)
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.
(10 of 11)
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
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
(11 of 11)
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
(DINESH CHANDRA SOMANI),J. (AJAY RASTOGI),J.