Harish Kumar vs Maina Devi

This misc. appeal is directed against the order dated 27.02.2020 passed by Family Court, Hanumangarh in Civil Misc. Case No.52-A/2018 whereby an

application preferred by the respondent under Order IX Rule 13 CPC for setting aside the exparte decree of dissolution of marriage, has been

allowed.

The facts relevant are that the appellant preferred an application under Section 13-A of the Hindu Marriage Act, 1955 (for brevity, hereinafter

referred to as 'Act of 1955') against the respondent seeking dissolution of marriage by decree of divorce.

In response to the notice served, the respondent put in appearance before the Family Court on 17.11.2017 and made an application for providing her

assistance of legal expert as amicus curiae.

As per order sheet produced on record, the application remained pending, however, the learned counsel appearing for the appellant submits that the

amicus curiae was permitted to appear on behalf of respondent.

Be that as it may, on 21.04.2018 neither respondent nor the amicus curiae appeared before the Family Court; consequently the matter was proceeded

exparte against the respondent.

The Family Court after recording evidence exparte proceeded to pass the decree of dissolution of marriage vide judgment dated 11.07.2018. The

respondent preferred an application for setting aside the exparte decree, which stands allowed by the Family Court by order impugned. Hence this

appeal.

Precisely, the case set out by the respondent before the Family Court was that after appointment of the amicus curiae, a reply to the application

seeking divorce was prepared and duly signed by her, and the amicus curiae assured her that reply will be filed and as and when her presence will be

required, she will be informed. However, on 21.04.2018 the amicus curiae did not appear before the Family Court and, therefore, the matter was

proceeded exparte against the respondent by the Family Court and after taking exparte evidence, the application seeking dissolution of marriage was

allowed and decree of dissolution of marriage was passed.

The Family Court after due examination of the submissions made, found the explanation furnished by the respondent for her absence on 21.01.2018 as

plausible and acceptable and, accordingly while allowing the application, the exparte decree has been set aside and the matter has been restored to its

original number on payment of cost of Rs.500/-.

Learned counsel appearing for the appellant submits that the Family Court has seriously erred in allowing the application seeking setting aside of the

exparte decree, inasmuch as the respondent as also the amicus curiae did not appear before the court on 21.04.2018 and even thereafter on four dates

of hearing, nobody appeared on behalf of respondent before the Family Court and thus the respondent was not entitled for any indulgence by the

Court. Learned counsel submitted that absence of amicus curiae cannot be a ground for setting aside the exparte decree.

It is true that a litigant is required to keep herself/himself informed about the proceedings pending before the Court, but then, it is noticed that before

the Family Court the party to the proceedings is not entitled to claim representation by a legal practitioner and it is only when considered necessary in

the interest of justice the Family Court permits assistance of the legal expert as amicus curiae.

A perusal of the order sheet reveals that the matter was posted for reply to the application under Section 13 of the Act of 1955. As per the respondent

reply was already drafted and duly signed, but the same was not filed by the amicus curiae before the Family Court. It is pertinent to note that as per

the mandate of Section 9 of the Family Courts Act, 1984, (for brevity, hereinafter referred to as 'Act of 1984'), the Family Court is required to make

all possible efforts to persuade the parties in arriving at a settlement. Admittedly, in the instant case no efforts whatsoever were made by the Family

Court to persuade the parties in arriving at a settlement, as mandated by Section 9 of the Act of 1984. Even the application seeking assistance of legal

expert preferred by the respondent was not disposed of. The explanation furnished by the respondent for absence was not controverted by the

appellant by way of counter to application filed.

Thus, in the totality of the facts and circumstances of the case, we are of the considered opinion that the judicial discretion exercised by the Family

Court in setting aside the exparte decree after due consideration of the factual position emerging on record, does not warrant interference by us in

exercise of appellate jurisdiction.

The misc. appeal is, therefore, dismissed.