Rajasthan High Court - Jodhpur
Vijay Kumar vs Indra on 20 October, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 2538/2018
Vijay Kumar S/o Shri Prem Kumar, Aged About 31 Years, B/c Jat,
R/o Ward No. 11, Tibbi, District Hanumangarh.
----Appellant
Versus
Indra W/o Shri Vijay Kumar, Aged About 26 Years, Daughter Of
Bheemraj, B/c Jat, R/o Chak 28 S.s.w. Tehsil And District
Hanumangarh.
----Respondent
For Appellant(s) : Mr. Vijay Jain, through VC
For Respondent(s) : Mr. Nishant Motsara
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
20/10/2022
The present appeal has been preferred by the appellant Vijay
Kumar for assailing the Judgment and Decree dated 16.04.2018
passed by the Judge, Family Court, Hanumangarh in Misc. Civil
Case No.81/2017, whereby the application filed by the
respondent/wife under Section 13, Hindu Marriage Act, 1955, on
the grounds of cruelty, was allowed ex-parte.
The present civil misc. appeal is time barred by 83 days. An
application under Section 5 of the Limitation Act seeking
condonation of delay in filing of the present civil misc. appeal has
been filed by the appellant.
The facts pleaded in the appeal are that the marriage
between the appellant, Vijay Kumar and respondent, Smt. Indra
was solemnized on 23.05.2010 as per Hindu rites and rituals. Out
(2 of 4) [CMA-2538/2018]
of the wedlock, a daughter was born, residing with the
respondent/wife.
The respondent/wife noticed change in behavior of the
appellant/husband towards her. It is further pleaded that the
appellant/husband and his family members made dowry demands
by constantly harassing the respondent/wife to transfer her
father's land in name of the appellant/husband. The
appellant/husband and his family members in pursuance of the
demands beat the respondent/wife and daughter, who were
subsequently thrown out of the matrimonial home, without any
just cause. Aggrieved by such behavior, the respondent/wife
preferred an application for divorce under Section 13, Hindu
Marriage Act, 1955 to the Family Court, Hanumangarh which was
allowed ex-parte vide order dated 16.04.2018. Hence, this Civil
Misc. Appeal.
Shri Vijay Jain, learned counsel for the appellant urges that
the ex-parte decree dated 16.04.2018 passed by the Family Court
is absolutely unjustified. Learned counsel submitted that after
receiving summons of divorce application appellant engaged a
Lawyer (Nyay Mitra) to assist him in the matter. However, he did
not attend the proceedings before Family Court on 05.03.2018
resulting in ex-parte proceedings being initiated against him.
Learned counsel further submitted that appellant should not be
made to suffer due to non appearance of lawyer (Nyay Mitra)
before Family Court. On these grounds, a prayer was made that
ex-parte decree of divorce dated 16.04.2018 directing dissolution
of marriage may be set aside.
Per contra, Shri Nishant Motsara, learned counsel for the
respondent submitted that summons of divorce application were
(3 of 4) [CMA-2538/2018]
duly served upon the appellant on 07.04.2017. The appellant on
the aforesaid day appeared before Family Court and sought time
for filing reply. The Family Court at the request of appellant on
11.05.2017, 24.06.2017, 16.08.2017, 04.09.2017, 12.10.2017,
17.11.2017, 16.12.2017 and 29.01.2018 granted time to file
reply. The Family Court in view of aforesaid, on 05.03.2018
ordered ex-parte proceedings against appellant. Learned counsel
submitted that despite several opportunities, divorce petition was
not contested by the appellant. The order impugned, therefore,
does not suffer from any illegality or infirmity deserving
interference by this Court.
It was also brought to notice of the Court that after expiry of
the statutory period for filing appeal against divorce decree dated
16.04.2018, respondent/wife has married one Shri Suresh Kumar
son of Shri Radhey Shyam, resident of Chak 20, LNP, Manphool
Singh Wala, Sriganganagar, (Rajasthan) on 11.10.2018 and the
marriage has been registered by the Marriage Registration Officer
on 27.02.2012.
From the perusal of the impugned order and record of the
case, it becomes clear that the summons of the divorce application
were duly served upon appellant. The appellant, despite several
opportunities chose not to file reply and contest the prayer for
divorce. It is pertinent to note here that no plausible explanation
has been furnished for delay of 83 days in filing of present civil
misc. appeal seeking setting aside of the ex-parte proceedings of
divorce application. The prayer to set aside ex-parte proceedings
of divorce petition cannot be allowed at this stage when the
respondent has remarried with one Shri Suresh Kumar on
11.10.2018 and living happily with him.
(4 of 4) [CMA-2538/2018]
We are of the view that the impugned order dated
16.04.2018 whereby Family Court, Hanumangarh granted ex-
parte divorce decree on application filed by respondent/wife under
Section 13 Hindu Marriage Act, 1955 does not suffer from any
infirmity, factual or legal, warranting interference therein.
As a consequence, we find no force in this appeal which is
dismissed as being time barred and so also on merits.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
32-KshamaD/-
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