Sohanlal Ratnakar vs Smt. Manju

The Husband has preferred this Revision Petition by challenging the correctness and legality of an Order passed by the Family Court Gwalior, in Civil M.J.C. No. 05/2007 on Date 16.10.2007 whereby the Application preferred by the Wife, under Order 9 Rule 13 of the Civil Procedure Code, seeking setting aside of an ex parte Decree of Divorce, has been allowed, on the ground that technical attitude should not be adopted in a Matrimonial Dispute, while entertaining an Application under Order 9 Rule 13 of CPC.

Smt. Manju Ratnakar and Sohanlal Ratnakar are the married couple and Husband Sohanlal had submitted an Application seeking divorce from his Wife, which was registered as Case No. 309-A/05, and the notice was issued to the Wife, which allegedly was served upon her and on account of her absence in the proceedings, an order was passed for proceeding ex parte against the Wife and later on an ex parte Decree of Divorce was drawn by the Family Court in favour of the Husband on Date 01.03.2006. Soon upon receiving the intimation of the passing of the ex parte Decree, from her own Mother-in-Law, the Wife had obtained a Certified Copy of the Judgment and Decree and had approached the Family Court by preferring an Application under Order 9 Rule 13 of CPC alongwith an Application u/s 5 of the Indian Limitation Act.

The Family Court had permitted the parties to adduce evidence on the Application preferred under Order 9 Rule 13 of C.P.C. The Husband has examined the Process Server, who initially deposed that he knows the Wife and has effected the service upon her, however during cross-examination, he failed to establish the identity of the Wife, which created a doubt in the mind of the Family Court, however on account of the marking of signature of Wife, on the Process Report, the Court found that notice of Divorce Petition was properly served upon the Wife. The Family Court further found that the Wife had approached the Family Court with utmost bona fides and looking to the reasons assigned in the Application seeking condonation, the delay in preferring the Application was condoned. The Family Court had further opined that in a Matrimonial Dispute, no technical attitude should be adopted, while entertaining an Application preferred under Order 9 Rule 13 of CPC, as these provisions should be utilized liberally and in view of the principle of natural justice, both the Parties should be afforded an adequate opportunity of hearing. The Family Court has ordered for setting aside the Ex parte Decree of Divorce by the Impugned Order passed on Date 16.10.2007, which has been challenged by the Husband before this Court through this Civil Revision.

I have heard Shri Manish Sharma, Learned Counsel for the Petitioner and Shri H.K. Shukla, Learned Counsel for the Respondent and perused the Record.

A perusal of the statements recorded during consideration of Application (Under Order 9 Rule 13 CPC) demonstrate that the Wife and Husband were living together and she was discharging her matrimonial obligations, when suddenly the mother of her Husband disclosed to her on Date 27.04.2007 that an ex-parte Decree of Divorce has been obtained by her Husband on Date 01.03.2006. The Wife has categorically denied the service of Notice as also the signature on the Notice, which the Husband allegedly claims to have properly served upon her although it was found by the Court that the Husband had miserably failed to adduce any evidence in rebuttal that the signature marked on the Notice is made by his Wife Smt. Manju Ratnakar herself. The record also reveals that Smt. Manju Ratnakar was confined in jail for sometimes even when the present Revision was pending before this Court.

The Husband had moved an application I.A. No. 18616/07 before the High Court (in the present matter) for securing service of Notice upon his Wife, through Jailor, on the ground that she is confined in the State Prison (in relation to some other matter) and the service should be effected through the Superintendent of Jail, Shajapur. This fact has no relevance so far as the bye-parte evidence adduced regarding setting aside of the ex-parte Divorce Decree is concerned, however Learned Counsel for the Respondent has made much stress on this fact to demonstrate that adequate opportunity was not available to the Wife, on being confined in jail.

The Family Court while examining the issue regarding service upon the Wife has reached a conclusion that the Wife has failed to establish that some irregularities were committed in effecting service of summon upon her and the Counsel for the Petitioner has made much stress upon this observation of the Court that upon finding the service to be proper, the Family Court was not justified in setting aside the ex-parte Decree.

A perusal of Rule 13 of Order 9 of C.P.C. reveal that there exist certain exigencies, in which a Court can pass an order of setting aside an ex parte order/decree, where firstly the Court has to record its satisfaction that the summons was not duly served and secondly that the defendant/litigant was prevented by any sufficient cause from appearing before the Court, however in other situations also, the Court can pass suitable orders for setting aside the decree on such terms and costs which the Court may deem fit. The two Proviso appended to Rule 13 certainly put fetters on the powers of the Court, but in the considered opinion of this Court, none of these Proviso shall have any application to the facts of the present case, in as much as neither the decree is of such a nature, which should not be or could not be set aside, nor an appeal was preferred against the ex-parte Decree by the Wife and further it was not a case where only on account of irregularity in the service of summons, the Court has exercised powers under Order 9 Rule 13 of CPC, but it has exercised its powers, while liberally construing the provisions, while setting aside the Ex parte Decree of Divorce.

The Supreme Court while analyzing the scope and the power of a Court to set aside a Decree has observed in a case reported as Rabindra Singh Vs. Financial Commissioner, Coopration, Punjab and Others, that the Court will have ample jurisdiction to set aside the ex parte decree subject to the statutory interdict and since there exists no statutory bar in setting aside an ex parte decree in Order 9 Rule 13 of CPC, therefore no jurisdictional error seems to be have been committed by the Family Court in setting aside the ex parte decree.

Although the Principles of Natural Justice could not be pressed into service at the first instance, while adjudicating the controversy, at the touchstone of statutory provisions of the Code of Civil Procedure, however in some of the Judgments of the Supreme Court, it has been observed that all the Courts would be having power to set aside an ex parte Order on the ground of failure of principle of natural justice and since in the present matter, the Wife had been proceeded ex parte right from the inceptive stage of the divorce proceedings, it could be gathered from the facts of the case that the principle of natural justice of audi alteram partem would be violated, in case the Wife is not afforded an opportunity of hearing. Although the Legislature has not envisioned utilization of power of setting aside an ex-parte Order under Order 9 of the Code of Civil Procedure, by applying the principle of natural justice, however a Judgment of the Supreme Court reported as Saleem Bhai and Others Vs. State of Maharashtra and Others, provides useful observation about the concept of natural justice and its application to a variety of litigation and this dictum of the Supreme Court would be beneficial for the purposes of adjudication of such matters, where the application of the principle of natural justice would facilitate meeting the ends of justice. The relevant Paragraph 19 of this judgment of the Supreme Court is quoted herein below ;

Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.

Therefore in view of the facts of the present matter, as also in view of the Judgement of the Supreme Court, it is crystal clear that the Order passed by the Family Court, whereby the ex-parte Decree of Divorce has been set aside, deserves no modification or correction at the hands of this Court. The Order does not suffer from any infirmity of fact or law. Therefore the Revision fails and is hereby dismissed.