The Patna High Court, while setting aside the order of a family court which dismissed the petition under Section 9 of the Hindu Marriage Act without hearing the husband observed that an order of this nature contravenes the provisions of Order IX Rule 8 of the Code, which lays down the procedure to be followed in absence of the plaintiff and the order is not appealable but advisable.
Brief Facts:
The appellant-husband filed an R.C.R. case No. 103 of 2012 against the respondent-wife in the Court of Principal Judge Family Court, Siwan for restitution of conjugal rights under section 9 of The Hindu Marriage Act, 1955 who passed an order in favour of the respondent-wife granting an amount of Rs. 70,000/- along with Rs. 10,000/- per year towards respondent-wife after considering the matter at hand and dismissed the case.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the appellant submitted that the respondent has been living at her parental house and there have been several attempts made by the appellant to bring the respondent-wife back to the matrimonial home but the respondent-wife refused to join him.
Observations of the Court:
The court noted that both parties were directed for reconciliation on 22.03.2017 which has failed and the issues were framed on 25.06.2018 and the appellant-husband and Opposite Party-Respondent-Wife thereafter were last present together on 11.06.2019, after the Appellant-Husband not appear on any subsequent dates and the family court in the absence of the Appellant-Husband in the court, proceeded to examine three witnesses of Respondent-wife and thereafter passed judgment and decree without hearing the appellant-husband.
The court referred to Order IX Rule 8 of the Code of Civil Procedure, 1908 and stated that the same mentions that when the defendant only appears and the plaintiff does not appear, the procedure laid down in Rule 8 shall be followed and the defendant is only entitled to have plaintiff’s suit dismissed and the defendant is also not entitled to call any evidence.
Further, the court referred to the decision of the court in the case of Purabii Dasgupta (Sarkar) vs. Arun Kumar Dey wherein it was held that an order disposing of the suit deciding the question of maintainability hearing only the defendant in the absence of the plaintiff, can be treated as dismissed for default and further it is not a ‘decree’ inasmuch as such a decision does not decide the matter involved in the suit.
Further, the court stated that an order of this nature contravenes the provisions of Order IX Rule 8 of the Code, which lays down the procedure to be followed in the absence of the plaintiff and the order is not appealable but advisable, and it can also be interfered with by the High Court under 227 of the Constitution of India.
The court concluded that hearing the defendant only in the absence of the plaintiff shall be treated as dismissed for default and we are fully satisfied that the order proceeding against the Appellant-Husband was not in accordance with the law.
The decision of the Court:
The court allowed the appeal and set aside the impugned order.
Case Title: Raju Sah vs Rinku Devi
Coram: Hon’ble Justice P.B. Bajanthri and Hon’ble Mr. Justice Ramesh Chand
Case no.: Miscellaneous Appeal No.386 of 2022
Advocate for the Petitioner: Mr. Vijay Bardhan Pandey
Advocate for the Respondents: None
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