Kamlesh Suvalka vs Rekha

This appeal is directed against order dated 6.8.18 passed by the Family Court, Bhilwara in Civil Misc. Case No.259/16, whereby an application preferred by the respondent under Order IX Rule 13 read with Section 151 CPC, for setting aside the ex parte decree of dissolution of marriage passed in favour of the appellant vide judgment dated 28.11.15 passed in Case No.364/15, has been allowed and the ex parte decree stands set aside.

The facts relevant are that the appellant-husband filed a petition under Section 13 of Hindu Marriage Act, 1955 (for short "the Act") against the respondent-wife seeking dissolution of marriage on the ground of desertion. Pursuant to the notice served, the respondent-wife did not put in appearance and therefore, the matter was proceeded ex parte against her vide order dated 16.9.15. The statement of the appellant and his witnesses were recorded. After due consideration of the evidence on record, the Family Court vide judgment dated 28.11.15 proceeded to pass an ex parte decree directing dissolution of marriage between the parties. The respondent-wife preferred an application under Order IX Rule 13 read with Section 151 CPC for setting aside the ex parte decree, which stands allowed by the order impugned dated 6.8.18. Hence, this appeal.

Learned counsel appearing for the appellant contended that the Family Court has seriously erred in setting aside the ex parte decree inasmuch as, the respondent appeared before the Family Court on 22.6.15 and thereafter, did not participate in the proceedings on subsequent dates of hearing i.e. 3.8.15, 28.8.15 and thus, the Family Court was absolutely justified in directing ex parte proceedings against the respondent. It is submitted that during the pendency of the petition, the respondent did not file an application for setting aside the ex parte proceedings and therefore, at this belated stage, the application preferred for setting aside the ex parte decree without assigning any justifiable reason for absence has rightly been dismissed. It is submitted that the stand taken by the respondent that she did not appear before the Family Court inasmuch as, the matrimonial dispute had already been settled by way of compromise, is absolutely false and therefore, the order impugned passed by the Family Court accepting the stand of the respondent deserves to be set aside.

On the other hand, the counsel appearing for the respondent submitted that the respondent had appeared before the Family Court on 22.6.15 and thereafter, she absented inasmuch as, the matrimonial dispute was settled out of the court. It is submitted that the respondent did not appear on the dates of hearing subsequent to 22.6.15 for bona fide reason and therefore, the Family Court has committed no error in setting aside the ex parte decree.

I have considered the rival submissions and perused the material on record.

Indisputably, pursuant to the notice served, the respondent had appeared before the Family Court on 22.6.15, however, on that day, the Judge, Family Court was on leave and therefore, the matter was adjourned to 3.8.15. Thereafter, on two consecutive dates of hearing, the respondent did not appear and therefore, vide order dated 16.9.15, the matter was proceeded ex parte against her and on the next date of hearing, the statements of the appellant and his witnesses were recorded and the matter was posted for final arguments. On the next date after conclusion of ex parte hearing, the judgment was reserved, which was pronounced on 28.11.15.

Precisely, the case set by the respondent in the application preferred for setting aside the ex parte decree was that by community persons' intervention, the appellant had agreed to live with her and discharge matrimonial obligations and therefore, relying upon him, she did not appear before the Family Court on the date fixed. It is submitted that she came to know about the ex parte decree being passed only when the copy of the ex parte decree dissolving the marriage was produced by the appellant before the courts at Gangrar in other cases pending. The factum of other cases pending as claimed by the respondent is not disputed by the appellant, as also the fact that the certified copy of the ex parte decree was produced by him before the court in other cases as claimed by the respondent. Thus, on the facts and in the circumstances of the case, the reason assigned by the respondent for not appearing in the matter before the Family Court in the proceedings under Section 13 of the Act on account of the intervening event, appears to be plausible and thus, the discretion exercised by the Family Court in accepting the existence of the sufficient cause for non appearance on the date the matter was proceeded ex parte against the respondent and on the dates subsequent thereto, does not warrant any interference by this court in exercise of its appellate jurisdiction.

In the result, the appeal fails, it is hereby dismissed. No order as to costs.

The record may be sent back to the Family Court, Bhilwara forthwith.