Chanda Kansari @ Kumari vs Dhaneswar Kansari
2023 Latest Caselaw 307 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                        MATA No.96 of 2019


Chanda Kansari @ Kumari               .....                            Appellant
                                               Ms.Sradhanjali Sahoo, Advocate
                                              On behalf of Ms.Geetanjali Majhi,
                                                                     Advocate

                                      Vs.
Dhaneswar Kansari                     .....                          Respondent
                                                       Mr. D.K.Sahoo, Advocate

            CORAM:
                       JUSTICE S.TALAPATRA
                      JUSTICE SAVITRI RATHO

                                         ORDER

09.01.2023 Order No.

13.

1. This matter is taken up through hybrid mode.

2. Heard Ms. Sradhanjali Sahoo, learned counsel appearing for

the appellant on instruction of Ms.Geetanjali Majhi, learned counsel

and Mr.D.K.Sahoo, learned counsel appearing for the respondent.

3. By means of this appeal, the judgment dated 19.06.2018,

delivered in Civil Proceeding No.231 of 2016 by the Judge, Family

Court, Rourkela, has been challenged. There is no dispute that the

said judgment has been passed ex parte dissolving the marriage

between the parties. It has been observed in the said judgment that

after service of notice, the respondent did prefer to not contest the

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matrimonial suit and hence, the proceeding had run ex parte. The

respondent in the suit is the appellant in this appeal. The respondent

has taken, inter alia, the following grounds in the appeal to

challenge the said judgment.

(1) It has been asserted that the Judge, Family Court,

without verifying the fact about the place of residence of the wife-

respondent, accepted the office note that the service of notice was

sufficient. It has been presumed that the wife-respondent was not

inclined to contest the suit and thereafter, the above judgment, as

challenged in this appeal, had been passed.

(2) The appellant has further contended that the Judge,

Family Court has caused grave injustice by not providing the

husband-petitioner scope to examine the witnesses to substantiate

the allegation that he made against the wife.

4. The appellant has challenged the decree of divorce being

perverse. She has stated that the decree of divorce is liable to be

recalled. From the impugned judgment, it further appears that the

respondent has only examined himself in order to substantiate the

allegations of cruelty meted out to him. Mr. Sahoo, learned counsel

appearing for the respondent has opposed the grounds cited by the

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appellant.

5. We have not examined the impugned judgment on merit. We

consider it incumbent upon us to note that even in an ex parte

proceeding, the burden under Section 101 of the Evidence Act

cannot be escaped by the person, seeking reliefs. He/she is bound to

prove his/her pleadings, which are laid in support of the reliefs. We

have noticed that the appellant did not file any written statement.

According to her, had the notice been served in the address shown in

the cause title, she would have received the same as on the relevant

point of time, she was not residing there. It would be appropriate in

such circumstances, to set aside the impugned judgment and remit

the matter back to the Judge, Family Court, Rourkela. Accordingly it

is ordered.

6. We direct the Judge, Family Court, Rourkela to recommence

the proceeding being the Civil Proceeding No.231 of 2016 from the

stage of filing of the written statement. As the counsel for both the

parties are before us, we direct the parties to appear before the

Judge, Family Court, Rourkela on 16th February, 2023. No fresh

notice will be issued by the Judge, Family Court, Rourkela for

appearance of the parties. The appellant is directed to file her written

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statement, if any, by the next date fixed by us.

7. The appeal is allowed.

8. Registry is directed to prepare the decree accordingly. If the

physical records are still lying with the Registry, those shall be

returned forthwith.

9. Urgent certified copy of this order be granted as per rules.

10. A copy of this order be sent to the Judge, Family Court,

Rourkela, without delay.

(S.Talapatra) Judge

(Savitri Ratho) Judge

Bichi