[Cites 3, Cited by 0]
Madhya Pradesh High Court
Smt Kiran Arya vs Om Prakash Arya on 21 January, 2026
Author: Dwarka Dhish Bansal
Bench: Anand Pathak, Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2026:MPHC-GWL:2721
1 FA-1058-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 21 st OF JANUARY, 2026
FIRST APPEAL No. 1058 of 2025
SMT KIRAN ARYA
Versus
OM PRAKASH ARYA
Appearance:
Shri Nischal Raje, Advocate for appellant.
Shri Irshad Shah and Shri Girraj Sharma, Advocates for respondent.
ORDER
Per: Justice Dwarka Dhish Bansal
Heard on I.A. No.5829/2025, which is an application for condonation of
delay in filing the instant first appeal.
2. Record shows that in spite of service of notice of the said I.A. and despite
putting in appearance before this Court, no reply/counter affidavit has been filed
on behalf of respondent.
3. As such and looking to the facts and circumstances of the case and nature
of litigation, the application is allowed and disposed of and delay occurred in
filing the appeal is hereby condoned.
4. Also heard on the question of admission.
5. With consent of parties, appeal is heard finally.
6. This first appeal has been filed by appellant/defendant/wife challenging
the ex parte judgment and decree dated 28.10.2022 passed by Additional Judge to
the Court of Principal Judge, Family Court, Gwalior in RCS HM No.27/2022,
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whereby the Court has passed a decree of divorce on the ground of cruelty
provided under Section 13(1)(i-a) of Hindu Marriage Act, 1955 (in short "the
HMA").
7. In short, facts relevant to decide the instant first appeal are that marriage
of the plaintiff and defendant was solemnized on 07.05.2015 and out of their
wedlock, two children were born, who as per plaint averments are residing with
respondent/plaintiff/husband. It is alleged in the plaint that at the time of marriage,
several articles/jewellery were given to the wife but immediately after marriage
and despite fulfilment of the needs of wife, she started making quarrel and did not
change her behaviour and she was also threatening the respondent/plaintiff to
implicate him in some false criminal cases. On 17.07.2021 she jumped down from
the roof of the house. It is alleged that lastly on 30.08.2021 the defendant/wife left
the matrimonial house as well as her children and took away entire jewellery
and refused to live with plaintiff/husband and is also not performing the
matrimonial relationship. On inter alia allegations, the petition/suit for divorce
was filed.
8. Record of the Family Court shows that upon service of summons,
defendant/wife appeared on 21.04.2022 and filed application under Section 13 of
the HMA, which was allowed and case was fixed for 20.06.2022 for reconciliation
proceedings. Again vide order dated 20.06.2022, the Court allowed another
application under Section 13 of the HMA and granted permission to the counsel
for appearance on behalf of defendant/wife and case was fixed for 26.08.2022 for
reconciliation proceedings. On 26.08.2022 order-sheet was drawn at 04:35 PM, in
which, it is mentioned that defendant/wife and her counsel Sushri Rekha
Kushwaha are absent and consequently case was proceeded ex parte against
defendant/wife by fixing the same for evidence of the plaintiff/husband for
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28.10.2022. On 28.10.2022, the plaintiff examined himself and on the same day,
the Court heard arguments and passed final judgment on 28.10.2022 itself and by
allowing the petition for divorce filed under Section 13(1) of the HMA granted
decree of divorce on the ground of cruelty on the basis of uncrossed testimony of
the plaintiff.
9. Challenging the aforesaid judgment and decree passed by the Family
Court, instant first appeal has been preferred by the appellant/wife.
10. Learned counsel for the appellant/defendant/wife submits that
aforementioned proceedings undertaken by the Family Court being contrary to
law and settled procedure are not sustainable which have vitiated the impugned ex
parte judgment and decree of divorce. He submits that even though on 26.08.2022
the defendant/wife was not present, but looking to the purpose for which case was
fixed, the Court either should have fixed the case for filing written statement or for
want of appearance of duly engaged counsel, a notice of hearing should have been
sent to the defendant/wife. He also pointed out that in the entire proceedings, case
was never listed for filing written statement nor the right to file written statement
was closed, so there was no question to proceed ex parte against the
defendant/wife and to record ex parte evidence of the plaintiff/husband. With
these submissions, learned counsel prays for allowing the instant first appeal.
11. In turn, learned counsel for respondent/plaintiff/husband submits that
although the case was not listed for filing written statement but on 26.08.2022,
neither the defendant nor her counsel had appeared, therefore, the Court has not
committed any illegality in proceeding ex parte against the defendant/wife and in
passing ex parte impugned judgment and decree by recording ex parte evidence of
the plaintiff/husband. With these submissions, learned counsel prays for dismissal
of the appeal.
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12. Heard learned counsel for the parties and perused the record.
13. Undisputedly, in the present case, summons was served on the
defendant/wife and she herself appeared on 21.04.2022 and filed an application
under Section 13 of the HMA, which was allowed on 21.04.2022 itself. In the
order-sheet dated 20.06.2022, again another application filed under Section 13 of
the HMA was considered and allowed and case was fixed for reconciliation
proceedings for 26.08.2022.
14. Apparently, on 26.08.2022, the plaintiff/husband had appeared and
defendant/wife or her counsel did not appear. However, there is nothing on record
as to why the case was not taken up in early hours and in what circumstances, it
was taken up at 04:35 PM, which itself creates suspicion. Any how, in such
circumstances, the Court proceeded ex parte against the defendant and fixed the
case for ex parte evidence of the plaintiff, which was recorded on 28.10.2022 and
on the same date, arguments were heard and final judgment was also passed.
15. Undisputedly and from perusal of the record, it is clear that the Court
never fixed the case for filing written statement by the defendant. Even though
defendant did not appear on 26.08.2022 but she had already engaged her counsel
Sushri Rekha Kushwaha and the Court also permitted her to contest the case on
behalf of defendant. Even otherwise, the date 26.08.2022 was not the date, fixed
for hearing the suit.
16. Since prior to 26.08.2022, the case/suit was never listed for filing
written statement and no opportunity was granted to the defendant to file written
statement nor the right to file written statement was closed by the Court, therefore,
in our considered opinion, even if the defendant or her counsel did not appear on
26.08.2022, the Court either ought to have issued notice to the defendant/wife for
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the next date or to have fixed the case for filing written statement and without
fixing the case for filing written statement, the Court should not have proceeded
ex parte against the defendant or to have passed the ex parte judgment and
decree.
17. In the aforesaid circumstances, in our considered opinion, ex parte
judgment and decree passed by the Family Court, are not sustainable and hereby
set aside, with further direction to the Court to restore the suit/case to its original
number and to decide the same on merits after giving due opportunity of hearing
to the parties.
18. Both the parties are hereby directed to remain present before the Family
Court on 03.02.2026.
19. With the aforesaid, this first appeal stands allowed and disposed of.
20. Pending application(s), if any, shall stand disposed of.
(ANAND PATHAK) (DWARKA DHISH BANSAL)
JUDGE JUDGE
Abhi
