Smt. Priyanka Senapati vs Sri Priyabarta Mishra

Biswanath Rath, J

Heard this appeal on merit on consent of both the counsel.

This appeal involves a challenge to an ex parte judgment & decree of the competent Court in C.P. No.166 of 2021 thereby finally dissolving the marriage between the parties. This appeal is brought apart from other grounds with serious allegation of deciding the lower Court proceeding ex parte against the respondent-Petitioner herein.

Taking this Court to the nature of disposal of the proceeding through the impugned order, Mr. Bhuyan, learned counsel for the wife-Appellant attempted to establish his allegation of deciding the lower court proceeding ex parte. There has also been filing of detail order sheet vide Annexure-1. Taking this Court to the order sheet an attempt is also made by Mr. Bhuyan, learned counsel for the wife-Appellant to establish that for three is notice by way of Newspaper publication, there is inadvertent omission resulting non-attendance of the wife-Appellant.

Mr. Mishra, learned counsel for husband-Respondent-the applicant in the Family Court proceeding, however, taking this Court to the plea taken in I.A. No.184 of 2022 and going through the same attempted to submit that there has been deliberate non-appearance of the wife involved herein compelling the Family Court to decide the matter ex parte and thus submits that there is no fault to be found with the Family Court.

Considering the submissions of all the parties, this Court finds, there is no dispute at Bar that the proceeding has been decided ex parte without even entering into the controversy between the parties. Keeping in view the settled position of law, this Court observes, for the nature of proceeding involved, disposal of such matter should involve contest of the parties. This Court since finds, the impugned order is an outcome of ex parte conclusion, is inclined to interfere in such order and accordingly sets aside the order dated 21.12.2021 in C.P. No.166 of 2021. However, for there is requirement of fresh adjudication of the proceeding involved in C.P. No.166 of 2021, this Court while keeping in view that there is non-cooperation of the wife in the conclusion of the Family Court proceeding, directs both the wife and husband to appear before the learned Judge, Family Court, Bhubaneswar alongwith a copy of this judgment on 3rd August, 2023 for bringing a fresh outcome in C.P. No.166 of 2021. Looking to the conduct of the wife this Court also directs, in the event the Family Court, Bhubaneswar again finds two consecutive absence of the wife in the course of proceeding, the Family Court, Bhubaneswar shall proceed with the matter ex parte or dispose of the same only hearing the husband.

This Court while directing for re-adjudication of the proceeding vide C.P. No.166 of 2021, also observes, fresh adjudication of the proceeding vide C.P. No.166 of 2021 will not include the observation already made in the ex parte disposal of the proceeding. Further considering that the impugned order is already interfered with and set aside with a direction of remand of the proceeding and for the sufficient loss of time in the meantime, this Court also directs the Family Court, Bhubaneswar to bring final outcome to the proceeding involved as expeditiously as possible preferably within a period of six months from the date of appearance of the parties.

This MATA succeeds to the extent indicated hereinabove. There is, however, no order as to costs.

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