Smt. Rajesh Devi vs Jaibir Singh Jangra

R.P. Nagrath, J.—The instant appeal is directed against the order dated 05.08.2010 passed by the District Judge, Family Court, Bhiwani dismissing application filed by appellant-wife under Order IX Rule 13 of CPC (CPC) for setting aside the ex parte judgment and decree of divorce dated 26.04.2008. The marriage between the parties was solemnized on 17.12.1989 and two children, one male and the other female, were born from the wedlock. The children are now 19 years (son) and (daughter) 13 years old.

The petition for divorce was filed by respondent-husband on 02.01.2007. Appellant put in appearance before the trial Court on 11.08.2007. It was adjourned for filing written statement to 13.11.2007 with a direction to the parties to appear in person for reconciliation proceedings. The matter was then adjourned to 13.12.2007 for filing written statement subject to payment of Rs. 300/- as costs. It was also observed that both the parties were not present in person and they were again directed to appear on the next date. On 13.12.2007, the trial Court struck off defence of appellant for non-payment of costs and not filing the written statement. The petition was adjourned to 04.04.2008 for ex parte evidence. Certified copies of orders dated 11.08.2007, 13.11.2007 and 13.12.2007 are Ex. R-1 to Ex. R-3.

On 04.04.2008, appellant was present in person in the lower Court and informed that her counsel was demanding money to file written statement. The case was adjourned by the lower Court to 11.04.2008 for enabling appellant to move such application as she may consider necessary in the matter. She was also advised to contact Secretary, District Legal Services Authority (DLSA), Bhiwani for legal assistance. The trial Court, however, recorded ex parte evidence of the respondent.

On 11.04.2008, the appellant was present in person and the trial Court observed that instead of contacting Secretary, DLSA, the appellant moved an application for providing legal aid, which was dismissed on the ground that she could apply to DLSA and the petition was adjourned for 26.04.2008 for enabling her to approach the Secretary, DLSA. However, on the next date, ex parte judgment was passed dissolving marriage by granting a decree of divorce. Certified copies of the orders dated 04.04.2008, 11.04.2008 and 26.04.2008 are Ex. R-4 to Ex. R-6.

The ground taken by the appellant in her application under Order IX Rule 13 of CPC is that being a poor lady, she was unable to pay fee demanded by her advocate Sh. Anil Tanwar, who even did not guide her properly for legal assistance. The appellant averred that she was in fact turned out in December, 2006 by the respondent who is a BSF personnel.

It was also averred that her counsel did not inform about the proceedings in the case nor the fact that she had been proceeded against ex parte. When she went to her matrimonial home to meet the children on 23.07.2008 that her father-in-law and mother-in-law did not allow her to enter the house on the ground that respondent has obtained ex parte judgment and decree dated 26.04.2008 and she has no concern with the matrimonial home.

The respondent contested the application on the ground that appellant deliberately did not appear in the case nor adhere to the advice of the Court for moving application for legal assistance, if she was unable to engage private advocate. The plea that the appellant came to know about the ex parte judgment and decree on 23.07.2008 is also denied.

While the application under Order IX Rule 13 of CPC was pending that Family Court was constituted at Bhiwani and the application was transferred to the District Judge, Family Court, Bhiwani on 08.01.2010. The Family Court framed following issues from the above pleadings of the parties:--

(i) Whether the ex parte judgment decree is liable to be set aside on the ground as alleged? OPP

(ii) Relief.

The parties produced their respective evidence. Learned trial Court dismissed her application by order dated 05.08.2010.

We have heard learned counsel for the parties and gone through the record.

It was vehemently contended by learned counsel for respondent that the plea of appellant that she was unable to engage a lawyer cannot be believed because sufficient indulgence was shown by the trial Court advising her to approach Secretary, DLSA for legal aid. It is urged that the appellant engaged private advocate on three occasions and it does not lie in her mouth to say that she was unable to engage advocate for proper legal assistance. According to learned counsel the appellant engaged an advocate when she appeared initially in the divorce petition and also while moving an application under Order IX Rule 13 of CPC. It is further contended that even after the decision of the divorce petition she moved an application for grant of maintenance u/s 125 of the Code of Criminal Procedure (Cr.P.C.) by engaging a private advocate.

We are unable to accept the above contention because the appellant had been pursuing her litigation to save her married life. The parties were married about 17 years before the divorce petition was filed by respondent. They have grown up children as their son was about 16 years old and daughter 10 years old in the year 2010 when the evidence in the application for setting aside the ex parte judgment and decree was being led. According to respondent, the appellant left the matrimonial home in August, 2006 by leaving the children, whereas her plea in the application under Order DC Rule 13 CPC is that she was turned out of the house and was even ready to live in the matrimonial home. These were the questions requiring adjudication on merit after appellant is able to contest the petition.

We would refer to certain benevolent provisions of the Family Courts Act, 1984 which the Family Court was bound to keep in view while deciding the issue involved. Those provisions are enumerated thus:--

Counselors, officers and other employees of Family Courts:-

(1) The State Government shall in consultation with the High Court, determine the number and categories of Counselors, officers and other employees required to assist a Family Court in the discharge of its functions and provide the Family Court with such Counselors, officers and other employees as it may think fit.

(2) xxxx

Duty of Family Court to make efforts for settlement.--

(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.

(emphasis supplied)

(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.

(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of any other power of the Family Court to adjourn the proceedings.

Procedure generally.-

(1) & (2) XXXX

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by the one party and dented by the other.

Assistance of medical and welfare experts.--In every suit or proceedings, it shall be open to a Family Court to secure the services of a medical expert or such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purposes of assisting the Family Court in discharging the functions imposed by this Act.

The other important provision is Section 13 of the Act, which says that notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right to be represented by a legal practitioner; provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.

The above provisions lay down basic guidelines for the Family Courts dealing with matrimonial disputes.

Sub-section (2) of Section 23 of the Hindu Marriage Act, 1955 says that before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. Subsection (3) of this Section, however, lays down that for the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.

The Family Court observed in the impugned order that the appellant did not appear on the date fixed for reconciliation but the trial Court record does not show that the respondent even appeared in person for the said purpose.

Keeping in view the above statutory obligations, we express our concern over the order Ex. R-2 passed by trial Court on 13.11.2007, granting adjournment for filing written statement subject to payment of Rs. 300/- as costs. When the lady has expressed herself being a poor, rustic villager, how could payment of Rs. 300/- as costs be insisted upon.

On 04.04.2008, when the divorce petition was fixed for ex parte evidence, the appellant appeared personally and pleaded before the Court that her counsel had demanded money from her for filing written statement. The ex parte evidence was recorded on that day but the trial Court tendered advise to the appellant to contact the Secretary of the District Legal Service Authority, Bhiwani for free legal aid. That should not have been the approach because a rustic lady roaming in the Courts cannot know the procedure how to deal with the issue of seeking legal assistance. The trial Court should have called Secretary, DLSA for listening to the lady and provide necessary legal assistance. In fact the appellant had been pursuing the matter and moved an application on 11.04.2008 for providing legal aid but very surprisingly the trial Court dismissed the application with the observation that such an application has to be submitted before DLSA. The trial Court granted time to appellant till 26.04.2008 to approach the said Authority but ultimately passed the ex parte decree on the said date. The explanation of the appellant that her counsel in the case did not advise her properly how to approach DLSA should have been readily accepted by the Court. That apart, when the trial Court knew the fact that the appellant was in need of legal aid, how could it record the ex parte evidence?

Coming to merits of her plea, we find that appellant, who testified her version by tendering affidavit Ex. PW1/A is supported by two persons belonging to the village of respondent. This evidence could not be lightly rejected. There may be some reason to suspect Mangat PW-2 on the ground that he had a dispute of common wall with the father of respondent, but there was no reason to disbelieve Dharam Raj (PW-3), who has no enmity with respondent and withstood the test of extensive cross-examination. This witness also stated that appellant came to their village on 23,07.2008 to meet her children but she was not permitted to enter the house and was given beating. It is contended that there was no whisper of the said beating by appellant herself in the application or while she appeared in the witness-box as PW-1. However, there was a categorical stand of appellant that she was not permitted to meet the children. On the other hand there is statement by the respondent himself as RW1 and another person Vinod as RW-2, who has been examined simply to say that since 2006 the appellant never came to the village. Such a negative evidence is not sufficient to rebut the positive statement of appellant and her witnesses.

The plea of respondent was also that there was delay in filing the application beyond the limitation period of 30 days, but it should have been condoned in view of the circumstances explained because the strict procedure regarding condonation of delay cannot be adopted in such proceedings.

Learned counsel for the respondent submits that despite direction of the trial Court, the appellant did not appear for reconciliation, therefore, whole exercise of reconciliation would have been utter failure. The above observation of the trial Court suggests that calling the parties to appear in person was an empty formality as presence of respondent for the purpose was never ensured. When the appellant had been appearing in person on various dates the court below should have invoked its jurisdiction for even coercing presence of respondent to comply with the legislative mandate.

We, therefore, find that the impugned order dated 11.04.2008 dismissing the application for setting aside the judgment and decree deserves to be set aside and in the facts and circumstances of the case the application needs to be allowed with exemplary cost.

Therefore, the appeal is accepted and order dated 05.08.2010 dismissing the application of the appellant under Order IX Rule 13 of CPC is set aside with cost of Rs. 10,000/- to be paid by respondent. Consequently, ex parte judgment and decree passed in favour of the respondent dated 26.04.2008 would stand set aside and the petition would now proceed further in accordance with law.

The District Judge, Family Court would ensure that the proper legal aid is provided to the appellant. The parties are directed to appear before the District Judge, Family Court on 22.07.2013. The respondent shall pay Rs. 10,000/- as costs to the appellant by way of demand draft in her favour on the date fixed. Appeal is allowed.