Rajasthan High Court
Narendra Kumar Jat Son Of Mangha vs Smt. Asha D/O Shri Hasaram on 1 December, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No.133/2021
Narendra Kumar Jat Son Of Mangha, Aged About 48 Years, R/o
Village Jethana, Police Station Mangliawas, District Ajmer (Raj.)
----Petitioner
Versus
Smt. Asha D/o Shri Hasaram, R/o Village Makreda, Police Station
Mangliawas, District Ajmer (Ajmer.)
----Respondent
For Petitioner(s) : Mr. Shiv Shanker Choudhary
For Respondent(s) : Mr. M.S. Saharan
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
01/12/2022
1. Instant revision petition under Section 115 CPC has been
filed by petitioner-husband assailing the order dated 07.08.2021
passed in Civil Misc. Case No.46/2015 by the Family Court No.1,
Ajmer whereby and whereunder application under Order 9 Rule 13
CPC filed by non-petitioner wife has been allowed and ex parte
decree for divorce dated 16.07.2011 passed in divorce petition
No.176/2010 by the Family Court, Ajmer has been set aside.
2. Heard counsel for both parties and perused the record.
3. From perusal of record, it appears that parties have entered
into marriage way back in the year 1989 and started to live as
husband and wife since 2004. Out of their wedlock, one son born
on 23rd September, 2005. Thereafter, some matrimonial acrimony
occurred between parties and petitioner-husband filed a petition
under Section 13 of the Hindu Marriage Act bearing No.176/2010
(2 of 4) [CR-133/2021]
before the Family Court, Ajmer seeking dissolution of marriage.
Notice of divorce petition was served upon non-petitioner wife by
way of Chaspangi and learned Family Court treated her service as
sufficient and proceeded ex parte. Finally divorce petition was
allowed and ex parte decree for divorce was granted vide
judgment dated 16.07.2011.
4. It appears that non-petitioner wife moved one application
under Section 125 Cr.P.C. for claiming maintenance, at that point
of time, husband disclosed about the ex parte decree for divorce
and then she moved application under Order 9 Rule 13 CPC, to set
aside the ex parte decree for divorce on 07.11.2013.
5. On the application under Order 9 Rule 13 CPC, the Family
Court issued notice, reply was filed by the petitioner and
thereafter, opportunity to adduce evidence by both parties was
accorded. Non-petitioner wife, in her statements, stated that
notice (Ex.A1) was never served upon her address nor she refused
to receive such summon. The person Brijesh Kumar, whose
signature was alleged to be made on the report of refusal,
appeared as AW-2 and denied his signatures as well as the report.
Another witness Syobaksha did not appear. The Process Server
Shukhdev Sharma also appeared as witness CW-1 and he admits
that on the refusal report on summons, the address of another
witness Syobaksha is not indicated.
6. No evidence was adduced from the side of petitioner-
husband.
7. Learned Family Court, after appreciation of evidence, has
concluded that the summon of divorce petition (Ex.1) was not
served upon non-petitioner wife and report of refusal to receive
the summon is not in accordance with provisions of Order 5 Rule
(3 of 4) [CR-133/2021]
17 CPC. Family Court also observed that non-petitioner wife has
filed application for maintenance under Section 125 Cr.P.C. which
is pending and therefore, it cannot be disbelieved that she was not
aware about the divorce petition. Thus, delay was condoned and
application under Order 9 Rule 13 CPC was allowed vide order
dated 07.08.2021 and after setting aside the ex parte decree for
divorce petition dated 16.07.2011, the divorce petition has been
ordered to be restored on its original number to be decided afresh
after giving opportunity of hearing to non-petitioner wife. This
order has been challenged by the petitioner-husband.
8. It has been informed that after passing the impugned order
dated 07.08.2021, non-petitioner wife has appeared in the divorce
petition and reply has been filed, issues have also been framed
and divorce petition is at the stage of recording the evidence of
petitioner-husband. It has also not been disputed that another
application for maintenance filed by non-petitioner wife is also
pending before the Family Court, Ajmer for adjudication.
9. This Court finds that learned Family Court has assigned
cogent reasons to set aside the ex parte decree for divorce and
the fact findings in respect of non-service of notice/wrong report
of refusal are based on appreciation of evidence. Such fact
findings may not be held to be perverse or suffer from
jurisdictional error. It may also be noticed that this is a
matrimonial dispute and no malice intention on the part of non-
petitioner wife has been attributed. The interest of justice would
be served, if the divorce petition is decided on merits after hearing
both the parties.
10. Impugned order neither suffer from any material
illegality/irregularity or jurisdictional error nor leads to any
(4 of 4) [CR-133/2021]
miscarriage of justice. Therefore, the same does not require any
interference by this Court while exercising its jurisdiction under
Section 115 CPC.
11. As a result, the revision petition fails and the same is hereby
dismissed. No costs.
12. All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J
SAURABH/78
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