Rajendra Singh vs Usha

The appellant in the present appeal, by invoking Section 19 of the Family Court has challenged the order dated 16.10.2016. By virtue of the order impugned, passed by the leaned Family Court in Miscellaneous Case No. 53 of 2012, arising out of the principal suit being Suit No. 295 of 2012 "Rajendra Singh v. Usha, whereby the learned Family Court has allowed the Section 5 application and the ex parte decree dated 18.08.2012 has been set aside.

The appellant had initiated the proceedings under section 13 of the Hindu Marriage Act, 1955 praying for dissolution of marriage. The said suit was decreed by the learned Family Court in an ex parte manner vide its judgment dated 18.08.2012. According to the appellant to the application under Section 5 along with Order 9, Rule 13, the basis of the said application was that since she is residing for the last number of months along with the opposite party at 15, Rajeev Nagar, P.S. Doiwala, District Dehradun, along with their daughter Kumari Rashi. She could not get knowledge of the ex parte decree, nor any information was given by appellant.

Owing to the fact that the mother of the opposite party had fallen ill, therefore on 15.06.2012, the appellant had to go to Meerut to take care of the mother and to know about her well being. When she returned on 01.07.2012, on the address given above. Even thereafter, both the parties to the suit resided together in the same house. Not even this they were residing together, they, during this period discharged their matrimonial obligations and had established physical relationship amongst themselves.

The appellant, who was having the knowledge of ex parte decree dated 18.08.2012, and was conscious of the fact that he was residing together with the respondent-wife did not give any information about ex parte decree. According to the respondent, the appellant created a scene in the family on 28.09.2012. On the basis of the said altercations, the appellant left 15, Rajeev Nagar, P.S. Doiwala, District Dehradun and the appellant did not turn up till 05.10.2012. Any wife, being inquisitive about the husband, not turning up, tried to enquire from the place of work of the appellant i.e. Jolly Grant Airport, from where she could gather the information given by the officials of the said airport and informed about the ex parte decree dated 18.08.2012. As she was not aware about the technicalities of law and since the wife claims to be uneducated, she could not understand the impact of an ex parte decree dated 18.08.2012.

It was on return on 06.10.2012 that the appellant informed the respondent about the decreed dated 18.08.2012, she was shocked to hear about the same. As she at no point of time had received any notice, summons or information about the proceedings. On reaching the Court, she engaged a counsel and tried to scrutinize the records of Suit No. 295 of 2012 which revealed that an ex parte decree of divorce has been passed on 18.08.2012.

In the application under Order 9, Rule 13, she built up a case that since she was out of station, she could not receive any notice nor has ever refused to take any notice and expressed her desire to face the order on its merit. Thus, prayed for restoration of the case.

The said application was opposed by the respondent on the ground that the respondent-wife since was residing together at 15, Rajeev Nagar, P.S. Doiwala, District Dehradun along with her daughter. As he is residing in a rental accommodation just to show that he is residing separately since March, 2012. To deny the establishment of any physical relationship he stated, that since March, 2012 as he is living in a rental accommodation, having physical relationship was out of question.

As advised by the learned counsel for the respondent, since she gathered the knowledge of the decree dated 18.08.2012 only on 05.10.2012 when she visited the airport at Jolly Grant, Doiwala, Dehradun. The counsel for the respondent advised that in view of the provisions contained under Article 123 of the Limitation Act, the period for filling of the application under Order 9, Rule 13 would run from the date of the knowledge. But to avoid any technicalities, still the appellant was advised to file an application under Section 5 of the Limitation Act in support of the application under Order 9, Rule 13.

Thus, respondent prayed for in the application under Section 5 of the Limitation Act that since the knowledge is attributed from 05.10.2012 and the restoration application was filed within the time from the date of knowledge, the delay ought not to create any impediment in getting the lis decided on its merits.

This application was opposed by the appellant on the ground that no doubt the application under Order 9, Rule 13 was filed earlier on 16.10.2012, but since the application under Section 5 of condonation of delay was filed on 05.09.2016. The application under Order 9, Rule 13 filed on 16.10.2012 cannot be considered because in the absence of Section 5 of the Limitation Act at the time when it was filed. The learned Family Court, while considering the application under Order 9, Rule 13 as well as the objection of the appellant recorded a finding to the following effect :-

(i) Suit was filed on 03.05.2012

(ii) Next date fixed by the court below was 07.07.2012 for filing of written statement

(iii) On 07.07.2012, the Presiding Officer was on leave.

(iv) Next date fixed was 18.07.2012

(v) On 18.07.2012, the Court held that the services was sufficient and directed the case to proceed ex parte.

On an application filed, order dated 16.10.2012 alleging that there was a refusal proceeded to decide under Order 9, Rule 13 and rejecting the same by the impugned order. What is surprising is that in the proceedings before the court below, the address of both the parties is same. But at the time of hearing of the application, opposite party, Rajendra Singh did not file any affidavit of witness and the suit was decided ex parte on 18.08.2012 or not.

The sole contention of the appellant was that during the intervening period, he had solemnized the second marriage after the expiry of period of 30 days. This concept of having re-married and taking the benefit of Section 15 is not available to the appellant because under sub-Section 4 of Section 28, the period of limitation for filling of the appeal is 90 days. Hence, rationally to bring the second marriage to be within limitation, it was expected that the party to a dispute or a decree holder should have waited for the expiry of the period as provided under sub-Section 4 of Section 28. This shows that the appellant had re-married even before the expiry of the period provided under sub-Section 4 of Section 28. The Court below rightly held that the appellant did not acquired the knowledge of the pendency of the suit as it was conceal to be brought to the knowledge of respondent, despite of the fact that they were residing under the same roof.

The Court below rightly allowed the application under Section 5 read under Order 9, Rule 13 and restored the suit. The arguments of the appellant to the effect that the second marriage has been solemnized, would be of no rescue for him for the reason that under the Hindu Marriage Act, 1955, the proceedings before the learned Family Court are governed by the provisions of Section 21 where CPC, has been made applicable which attracts under Order 9, Rule 13, which is not subject to provisions of under section 15 of the Hindu Marriage Act.

For the purposes of condonation of delay, on a simplicity reading of Section 5, no application is contemplated. Since the appellant was not fair, and the respondent did not had the knowledge, the court below has rightly allowed application under section 5 and consequently Order 9, Rule 13 whereby the ex parte decree dated 18.08.2012 was set aside.

Looking to the fact that the proceedings of the Original Suit No. 295 of 2013 "Rajendra Singh v. Usha is a belated proceedings, besides this, finding that the impugned order dated 16.11.2016, allowing sections, read with Order 9, Rule 13 do not suffer from any apparent anomaly or procedural flaw, this Court declines to interfere in the order under challenged and dismisses the appeal.

However, looking to the rival claims and interest of parties in a matrimonial case, matter is remitted back to the learned family court to decide the proceedings as expeditiously as possible, preferably within a period of three months from the date of production of this order.

Thus, the appeal fails and is dismissed, subject to the above observations. No order as to costs.