Leena vs Manish
2022 Latest Caselaw 5108 MP

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           IN THE HIGH COURT OF MADHYA PRADESH
                         AT INDORE
                          BEFORE
                HON'BLE SHRI JUSTICE VIVEK RUSIA
                                      &
        HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

                 HEARD ON THE 29th OF MARCH, 2022
                     ORDER PASSED ON 08.04.2022.

                    FIRST APPEAL NO.489/2007

 Between:-
  SMT. LEENA W/O SHRI MANISH UPADHYAY, AGED
  ABOUT 28 YEARS, OCCUPATION- NOTHING, R/O-
  57, GEETA NAGAR, BEHIND ST. PAUL, AT PRESENT
  MU-72, C-1 SECTOR-D, SCHEME NO. 71
                                                      .....APPELLANT(WIFE)
 [BY Ms.SWATI UKHALE, LEARNED COUNSEL FOR THE APPELLANT(WIFE)]


 AND

  SHRI MANISH S/O PURUSHOTTAM UPADHAYAY,
  AGED ABOUT 37 YEARS, OCCUPATION-SERVICE,
  R/O 57, GEETA NAGAR, BEHIND ST.PAUL SCHOOL.
                                              .....RESPONDENT(HUSBAND)
 [SHRI   YASHPAL   RATHORE,           LEARNED         COUNSEL   FOR    THE
 RESPONDENT(HUSBAND)].
PER :- JUSTICE VIVEK RUISA
                   JUDGMENT

Appellant(wife) has filed the present appeal challenging the ex-parte judgment dated 21.04.2007 and order dated 25.08.2007 whereby an application under Order 9 Rule 13 read with section 151 of C.P.C. has been dismissed.

The facts of the case in short are as under:-

(1) As per admitted facts, the marriage of the appellant(wife) and respondent (Husband) was solemnized on 21.02.2005 under the Hindu customs and rituals at Indore and they have no issue from the aforesaid wedlock.

(2) The respondent (Husband) filed a petition under Section 13, 13(1) A of the Hindu Marriage Act seeking dissolution of marriage on the ground of cruelty. According to him after the marriage, the behavior of the appellant(wife) was not cordial with him as well as his

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family members. She used to walk up at 09-10 AM and created a situation that caused atrocities to his mother. She used to quarrel with his mother and sister on the petty issue. She was in habit of threatening and pressuring him to live with her parents otherwise she would commit suicide. She used to threaten for false implications in the criminal case. On 13.04.2005, she wanted to go to her parent's house, but his mother did not give permission and she misbehaved and she threw a steel glass on him due to which he suffered an injury. On 14.05.2005, she left the house and took jewellery and cash of Rs. 28,000/- for which he made the complaint to the police. Without any reason, she has deserted him on 14.05.2005 and because of the cruelty committed to him, he is entitled to the decree of dissolution of marriage. On these grounds the respondent filed a petition on 09.02.2007 before the Family court and that was registered as HMA No.10/2007. Notices were issued to the appellant(wife) by ordinary as well registered post for an appearance on 19.02.2007. Machkuri submitted a report dated 21.03.2007 that this appellant(wife) has received the notice and signed the acknowledgement. Notice was treated to be served on 20.04.2007,since she did not appear, therefore, she was proceeded ex-parte. On 16.04.2007, the respondent(Husband) examined himself and closed the evidence. On 25.07.2007, the Court has passed ex-parte judgment and decree of divorce. (3) According to the appellant(wife), after the marriage on 21.01.2005, she lived 22-25 days in the house of the sister of the respondent(Husband), thereafter, one and half month in the house of in-laws and thereafter without any reason, was deserted by husband and since then she is living with his father. She approached the Pariwar Paramarsh Kendra from where notices were issued to the respondent (Husband) for appearance, but he did not appear. On 10.05.2007, his mother appeared thereafter on 21.05.2007, the respondent (Husband) appeared and produced the ex-parte judgment and decree. Then she came to know that the ex-parte decree has been obtained by fraud.

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(4) The appellant (wife) immediately approached the Family Court by filing an application under Order 9 Rule 13 read with section 151 of C.P.C. on 29.05.2007 alongwith an application under section 5 of Limitation Act. Notices were issued and the respondent(Husband) who appeared and filed the reply to the application for condonation of delay and application for stay. In the reply, he has disclosed that after the expiry of the limitation of filing of the appeal, he has performed the second marriage on 25.05.2007, hence, the applications be dismissed. Along with the reply he has filed photocopy of photographs of marriage and marriage card in which the name of the second wife is mentioned as Reshma Patel D/o Mr. Indrajeet Bhai Patel & Smt. Kalapna Ben Patel.

(5) The learned Family court vide order dated 25.08.2007 has dismissed an application under Order 9 Rule 13 read with section 151 of C.P.C. as not maintainable, hence, this appeal before this Court. (6) During pendency of this appeal, the respondent(Husband) has failed to deposit the maintenance amount. Mediation has also failed on 15.03.2022. The appellant(wife) has disputed the second marriage of the respondent(Husband) by submitting that the photograph and marriage card produced by the respondent(Husband) are forged documents created only to misguide the Family court, hence this Court has directed the respondent to keep the wife and child present in the Court on 29.03.2022.

(7) Today, neither the respondent(Husband) nor his so-called wife and son appeared before this Court, Shri Rathore learned counsel appearing submits that his wife and son have left him. In view of the above this Court has all reasons to believe that the existence of second marriage is doubtful.

(8) Learned Counsel for the respondent (Husband) has raised an objection that the first appeal is not maintainable under Section 19 of the Family Court Act as the appellant(wife) ought to have filed Misc Appeal against the order of rejecting an application filed under Order 9 Rule 13 read with section 151 of C.P.C. The aforesaid objection is not

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tenable because the appellant(wife) has an option either to challenge the ex-party decree by way of first appeal or by way of Misc. Appeal against the order of rejection of an application Order 9 Rule 13 read with section 151 of C.P.C. This appeal is treated as under Section 19 of Family Court Act challenging the ex-parte order.

We have heard learned counsel for the parties and perused the record.

(9) It is to be examined first as whether there was proper service of notice to the appellant (wife) . In the acknowledgment ( Tamili Report) there is a signature of appellant(wife) in Hindi and prima facie it appears as a forged signature because in none of the documents viz application and vakaltnama filed before this Court as well as before family court she has signed in English. Without verification as to whether the service report is valid or not, the family court has wrongly proceeded with her ex-party. Hence there was no proper service to the appellant before proceedings ex-parte.

(10) The Appellant(wife) had no knowledge about the filing of the application u/s 13 of the Hindu Marriage Act. In support of the petition filed under Section 13, 13(1) A of the Hindu Marriage Act, the respondent (husband) has examined himself, since the appellant(wife) was not there therefore, the evidence remained uncontroverted but the learned Family court ought not to have believed the statement and granted the ex-parte. The respondent has failed to establish allegations of cruelty by the appellant. Even in ex-parte, proceedings the burden on the plaintiff to prove his case by leading evidence is mandatory, merely, there is no denial or there is no cross-examination of opposition, the Court is not bound to grant ex-party decree unless the case is made out. The deposition of the respondent(Husband) in the divorce petition does not establish cruelty by the appellant hence, the decree is unsustainable and liable to be set aside. (11) Hence judgment dated 21.04.2007 and order dated 25.08.2007 whereby an application under Order 9 Rule 13 read with section 151 of C.P.C. is hereby set aside.

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(12) But looking to the conduct of the respondent(Husband), we are directing the Family Court to examine whether the respondent (husband) has actually performed the second marriage after the ex- parte divorce or not? The concerned Family Court shall conduct an enquiry to very the genuineness of the marriage card and photograph produced by the respondent (husband) and if it is found that he has produced false evidence, then proceeding under section 340 of Cr.P.C. be initiated against him.

In view of the above, First Appeal is allowed and ex-parte judgment dated 21.04.2007 is hereby set aside.

Let the record of the Court below be sent back along with judgment.

Certified copy as per Rules.

                ( VIVEK RUSIA )                    ( AMAR NATH (KESHARWANI))
                      JUDGE                                  JUDGE

                praveen/-

Digitally signed by
PRAVEEN NAYAK
Date: 2022.04.11 17:11:13
+05'30'