Rajasthan High Court - Jodhpur
Gurpreet Singh @ Guga Singh vs Seema Kaur on 27 January, 2021
Bench: Sangeet Lodha, Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 1207/2019
Gurpreet Singh @ Guga Singh S/o Shri Jogendra Singh, Aged
About 30 Years, R/o Kharakheda, Tehsil Tibbi, District
Hanumangarh (Raj.) (Husband)
----Appellant
Versus
Seema Kaur W/o Gurpreet Singh, D/o Shri Chanan Singh, R/o
Chanu, Tehsil Malot, District Muktsar (Punjab) (Wife)
----Respondent
For Appellant(s) : Mr. Rakesh Kumar Chotia
For Respondent(s) : Mr. Vijay Jain
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE RAMESHWAR VYAS
Judgment
27/01/2021
BY THE COURT: (PER HON'BLE VYAS, J.)
The instant appeal has been preferred by the appellant-
husband Gurpreet Singh under Section 19 of the Family Courts
Act, 1984 (afterwards referred as 'the Act of 1984') against the
order dated 04.04.2019 passed by Family Court, Hanumangarh
(afterwards referred to as 'Family Court') in Misc. Civil Case
No. 54/2016, whereby, the application filed by the respondent -
Seema Kaur under Order IX, Rule 13 CPC, for setting aside the ex
parte decree dated 02.09.2015, was accepted.
Brief facts of the case are that the appellant-husband filed an
application under Section 13 of the Hindu Marriage Act, 1955
against his wife respondent - Smt. Seema Kaur on the ground of
cruelty and desertion before the Family Court on 23.07.2013.
After service of notice, respondent Seema Kaur made her
(2 of 5) [CMA-1207/2019]
appearance on 26.09.2014 and sought time to file reply. On
23.04.2015 the case was transferred from Family Court to the
District Court, Hanumangarh. On 27.08.2015 as the respondent
was not present, District Judge ordered to proceed ex parte
against the respondent. On 26.09.2014 respondent filed an
application before the Family Court to provide legal aid to her
since she is unable to defend her case without the help of an
Advocate. No order was passed on the said application and
ignoring the application the Family Court proceeded ex parte
against the respondent.
On the next date i.e. 02.09.2015 three witnesses, from the
appellant's side, were examined and on the same day ex parte
decree of divorce was passed against the respondent-wife.
Being aggrieved by the ex parte decree respondent-wife filed
an application under Order IX, Rule 13 CPC and same was
rejected on 08.06.2017, against which, D.B. Civil Misc. Appeal No.
2659/2017 was filed, in which, the co-ordinate Bench of this Court
while accepting the appeal set aside the order rejecting the
application under Order IX, Rule 13 CPC and observed as under:-
"After hearing learned counsel for the parties, it
emerges from the facts that respondent is not disputing
the fact that order was passed at Punjab upon application
filed under Section 9 of the H.M. Act for restitution of
conjugal rights. It is also not disputed by the respondents
that he never took the appellant at Jaisalmer, therefore, at
the time of deciding the application the learned court
below was under obligation to take lenient view so as to
condone the delay in filing the application under Order 9
Rule 13 CPC to set aside the exparte divorce decree."
In pursuance of the order dated 08.062017, the Family Court
by order dated 04.04.2019 while allowing the application under
Order IX, Rule 13 CPC set aside the ex parte divorce decree
(3 of 5) [CMA-1207/2019]
passed in Civil Misc. Case No. 320/2013 (Gurpreet Singh vs.
Seema Kaur).
Aggrieved by the impugned order dated 04.04.2019 the
present appeal has been filed by appellant-husband.
It was submitted by learned counsel for the appellant that
the respondent was present before the Family Court on
26.09.2014 with her lawyer; she has been constantly seeking time
to file reply; looking to the lack of interest in defending divorce
application, the Family Court had no option but to initiate ex parte
proceeding against the respondent.
It was further submitted by learned counsel that the Family
Court without looking to the facts and circumstances of the case in
its right perspective, proceeded to pass a non-speaking order
dated 04.04.2019; the respondent was fully aware of divorce
application preferred by the appellant and there is no sufficient
cause, which prevented her from appearing in the Court; the
application under Order IX, Rule 13 CPC was not filed within
limitation; the respondent was not diligent while filing the
application. It is prayed that the impugned order be set aside.
On the contrary it was submitted by learned counsel for the
respondent that the appellant obtained the ex parte divorce
decree fraudulently; the Family Court did not commit any error in
setting aside the ex parte decree; the application was allowed by a
well reasoned speaking order, which does not warrant any
interference by this Court.
We have heard learned counsel for the parties and perused
the record.
As per provisions of Section 13 of the Act of 1984 no party to
a suit or proceeding before a Family Court shall be entitled, as of
(4 of 5) [CMA-1207/2019]
right, to be represented by a legal practitioner, provided that if the
Family Court considers it necessary in the interest of justice, it
may seek the assistance of a legal expert as amicus curiae.
In this case the respondent sought services of amicus curiae
by filing an application before the Family Court on 26.09.2014; no
order was passed on the said application by the Family Court,
whereas, as per proviso to Section 13 of the Act of 1984 it was
required of the Family Court to provide assistance of legal expert
as amicus curiae if it considers it necessary in the interest of
justice.
In the considered opinion of this Court the said irregularity
alone is sufficient to set aside the decree of divorce passed against
the respondent.
Apart from this, the provisions of Section 9 of the Act of
1984 have also not been followed by the Family Court. As per the
provisions of Section 9 of the Act of 1984 in every suit or
proceeding, endeavour shall be made by the Family Court in the
first instance, where it is possible to do so consistent with the
nature and circumstances of the case, to assist and persuade the
parties in arriving at a settlement in respect of the subject-matter
of the suit or proceeding.
On perusal of file of Civil Misc. Case No.320/2013 of Section
13 of the Act of 1955 it reveals that no endeavour was made by
the Judge, Family Court to persuade the parties in arriving at a
settlement. It appears that learned Judge, Family Court did not
even look into the Family Courts Act before passing the divorce
decree ex parte.
It is also relevant to mention here that on the application
filed by respondent-wife under Section 9 of the Act of 1955 a
(5 of 5) [CMA-1207/2019]
decree was passed against the husband to keep his wife alongwith
him. The appellant-husband kept silent regarding compliance of
the above order. As per the averments made in the application
under Order IX, Rule 13 CPC by the respondent-wife, the appellant
took her with him to Jaisalmer and they lived together for some
time at Jaisalmer. Afterwards he obtained ex parte divorce decree
fraudulently. In view of the fact that no explanation has been
given by the appellant on the said aspect, the allegation made by
the wife regarding obtaining ex parte divorce decree fraudulently
cannot be ignored outrightly.
The contentions raised by learned counsel for the appellant
to set aside the impugned order are not acceptable. The Family
Court was right in allowing the application under Order IX, Rule 13
CPC.
In view of the above factual and legal position, the appeal
filed by the appellant-husband is devoid of any merit and the
same is, therefore, dismissed.
(RAMESHWAR VYAS),J (SANGEET LODHA),J
45-AK Chouhan/-
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