Kavita Jain vs Ankit Jain

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 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 Court may be directed to decide the same in a time bound manner.

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 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 6.9.2019.

A copy of this order be forwarded to the Family Court No.1, Jaipur for compliance. Record be also sent back immediately.