Dulari Devi vs Dilip Poddar
2022 Latest Caselaw 2779 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
            D.B. Civil Misc. Appeal No. 85/2022

Dulari Devi W/o Dilip Poddar, Aged About 40 Years, D/o Kishori
Lal, B/c Agarwal, R/o Ward No. 14, Shati Nagar, Churu. At
Present Pocket-3, Pashchimpuri, Delhi.
                                                                 ----Appellant
                                  Versus
Dilip Poddar S/o Ram Chandra Poddar, B/c Agarwal, R/o Ward
No. 14, Shanti Nagar, Churu.
                                                               ----Respondent


For Appellant(s)        :     Mr.Om Rajpurohit.


         HON'BLE MR. JUSTICE SANDEEP MEHTA
      HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

                              JUDGMENT

18/02/2022

The instant misc. appeal has been preferred by the appellant

Dulari Devi for assailing the order dated 19.2.2020 passed by the

learned Judge, Family Court, Churu in Misc. Case No.131/2018,

whereby the application preferred by the appellant under Order 9

Rule 13 read with Section 151 C.P.C. was dismissed.

We have heard and considered the submissions advanced by

the counsel representing the appellant and have gone through the

impugned order.

The respondent filed an application under Section 13 of the

Hindu Marriage Act on 4.4.2018. Notice of the application was

served on the appellant, who failed to appear despite service of

notice, whereupon the learned Family Court proceeded to accept

the application preferred by the respondent husband and passed

an ex-parte decree dated 17.7.2018 directing dissolution of

(2 of 4) [CMA-85/2022]

marriage of the appellant and the respondent. The appellant filed

the application under Order 9 Rule 13 read with Section 151 C.P.C.

alleging that as a matter of fact, the notice of the application was

never served on her. She was made to sign the summon by

keeping her in dark. The respondent fraudulently got her to sign

an agreement dated 28.2.2018. The appellant went back to

matrimonial home at Churu on 14.9.2018. She was not allowed to

enter and was given the shocking information regarding the

decree of divorce. Immediately on receiving information regarding

the fraudulently procured divorce decree, the appellant moved the

application under Order 9 Rule 13 read with Section 151 C.P.C. for

setting aside of the divorce decree, which has been rejected by

the impugned order.

Shri Om Rajpurohit, learned counsel for the appellant urges

that the rejection of the appellant's application for setting aside of

the ex-parte decree is absolutely unjustified. The Family court

failed to consider the facts in the correct perspective. As a matter

of fact, summons of the divorce application were not properly

served on the appellant and she was made to sign the same by

keeping her in dark. On these grounds, Shri Om Rajpurohit

counsel representing the appellant implored the Court to admit

the appeal.

On a perusal of the impugned order, it becomes clear that

the summons of the divorce application were sent to the correct

address of the appellant. The appellant not only received the

summons but also filed reply under her own thumb impressions.

(3 of 4) [CMA-85/2022]

An agreement dated 28.2.2018 bearing the photographs of the

appellant was executed between the parties. The appellant was

residing at her father's house in Delhi, where the summons of the

application under Section 13A of the Hindu Marriage Act were sent

by registered AD Post. Thus, the fact regarding the appellant

having received the summons of the divorce proceedings is well

established and the objection to the contrary taken by the

appellant in the application under Order 9 Rule 13 C.P.C. and in

this appeal, is nothing but an afterthought. In the reply filed by

the appellant, the prayer for divorce was not contested. A perusal

of the impugned order dated 19.2.2020 reveals that after grant of

the ex-parte decree of divorce, the respondent has remarried and

a child has been born from the wedlock. An agreement dated

28.2.2018 was also executed for the purpose of divorce by mutual

consent which bears the thumb impression of the appellant and

was witnessed by her brother Shri Pritam Singh, sister-in-law

Smt.Minaxi and sister Rani Devi.

In view of the above facts, we are of the firm opinion that

the plea putforth by the appellant in the application under Order 9

Rule 13 C.P.C. seeking setting aside of the ex-parte proceedings of

divorce application is totally cooked up and unbelievable. The

appellant consciously signed the agreement dated 28.2.2018 for

divorce by mutual consent whereafter, the notices of the divorce

application were served on the appellant. The reply which was

filed was one of concession to grant a decree of divorce. As such,

the appellant cannot now be permitted to change her stance at

(4 of 4) [CMA-85/2022]

such belated stage more so when the respondent has remarried

and a child has born from his fresh wedlock.

As a consequence, we are of the opinion that the impugned

order whereby Family Court dismissed the application filed by the

appellant under Order 9 Rule 13 read with Section 151 C.P.C. does

not suffer from any illegality or infirmity warranting interference

therein.

Thus, the appeal fails and is dismissed as being devoid of

merit.

(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J

/tarun goyal/ 10

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