Case BriefsHigh Courts

Delhi High Court: A Bench of G.S. Sistani and Jyoti Singh, JJ., dismissed an appeal filed by the appellant-wife against the order of the family court rejecting her application under Order 9 Rule 13 CPC for setting aside the ex-parte decree of divorce passed in favour of her husband.

The parties married each-other in the year 1989. They were living separately since 2004. The husband filed a petition before the family court for grant of divorce under Sections 13(1)  (i-a) and (i-b) of the Hindu Marriage Act, 1955. A notice was issued to the wife, who despite the service of the same, decided not to appear in the matter. On 03-05-2008, the family court passed an ex-parte divorce decree in favour of the husband. The said order was challenged by the wife by filing an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree which was rejected by the family court. Aggrieved thus, the wife filed the present appeal.

Mitthan Lal, Advocate for the wife submitted that the husband played fraud on the court by producing a false report. As per him, the service report shows that the wife was not found at the given address and the summons were not delivered. Per contra, Prerna, Advocate appearing for the husband supported the impugned order.

The High Court noted that the wife’s application under Order 9 Rule 13 CPC was dismissed on the ground that it was not accompanied by an application seeking condonation of delay of 4 years and 5 months. Relying on the Supreme Court decision in Bhanu Kumar Jain v. Archana Kumar(2005) 1 SCC 787, the Court observed that, “apart from questioning the correctness or otherwise of an order posting the case for ex parte hearing, the defendant has to show sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date. Reading of the application under Order IX Rule 13 of CPC along with the impugned order would show that the appellant/wife has failed to give any satisfactory explanation for delay in filing the application under Order IX Rule 13 of CPC nor there was any application seeking condonation of delay of more than 4 years and 5 months. Thus, the Family Court has correctly dismissed the application under Order IX Rule 13 of the CPC.” In such view of the matter, it was held that the family court correctly rejected the wife’s application. Therefore, the appeal was dismissed. [RRD v. RS, 2019 SCC OnLine Del 7446, decided on 20-02-2019]

Case BriefsHigh Courts

Delhi High Court: Division Bench of Jyoti Singh and G.S. Sistani, JJ. allowed an appeal filed against the order of Family Court whereby an ex-parte divorce decree was passed against the wife.

The parties were married to each other. However, subsequently some differences arose and the husband filed for divorce under Section 13(1)(ia) of the Hindu Marriage Act. His petition was allowed and ex-parte divorce decree on ground of “cruelty” was passed against the wife. The wife applied to Family Court under Order 9 Rule 13 CPC for setting aside the ex-parte decree which was dismissed. Aggrieved thereby, the wife preferred the present appeal.

Trilok Chand and Rita, Advocates for the wife contended that she had instructed the previous counsel to prosecute the case on her behalf but he was not diligent in doing so. It was submitted that a complaint had also been filed against the previous counsel with Bar Council of Delhi.

The High Court issued a notice pursuant to which the husband appeared and submitted he had no objection to the appeal provided the wife does not take any unnecessary adjournment in the matter. The wife assured the Court to not cause delay in completion of the trial. As such, wife’s application under Order 9 Rule 13 read with Section 151 CPC was allowed and the ex-parte divorce decree passed Family Court was set aside. The matter was remitted back to Family Court. [R v. S.B.K., 2019 SCC OnLine Del 6929, dated 25-01-2019]

Case BriefsHigh Courts

High Court of Jammu and Kashmir: The Bench of Alok Aradhe J. recently addressed a revision petition wherein the petitioner challenged the decision of the trial court in allowing the application preferred by the respondent under Order 9 Rule 13 CPC.

The facts of the case are that the petitioner had filed a petition under Section 13 of the J&K Hindu Marriage seeking dissolution of marriage following which the respondent filed an application for transferring the proceeding to the Court of the Principal District Judge which was allowed and the parties had been directed to be present at the said Court on 20/10/2011. Further on, the petition was heard with the respondent proceeding ex parte subsequent to which an ex parte decree was passed. The petitioner had informed the army authorities about the dissolution of the marriage and the army authorities then went on to intimate the respondent about the decree of dissolution. Consequently the respondent had applied for extension of time in filing the application for setting aside the ex parte decree belatedly which was allowed by the trial court.

The counsel for the petitioner submitted that the Court should have appreciated the fact that the order for transferring the case was passed in the presence of both parties and that both parties had been directed to present themselves before the said Court on 20/10/2011. The counsel also contended that despite the authorities having informed the respondent about the dissolution, it took the respondent a period of 1 year to file an application seeking extension of time for filing the application. The last contention by the counsel for the petitioner was that the petitioner was not given any opportunity to file a reply or adduce any evidence in the proceeding under Order 9 Rule 13 CPC.

The counsel for the respondent on the other hand contended that the respondent had supported the order of the trial court and that the application seeking condonation of delay as well as the proceeding under Order 9 Rule 13 had been clubbed together and evidence had been recorded jointly in both the proceedings as was allowed in Manjeet Singh v. Manjeet Kour , 2001 SLJ 439 and in Darshana Devi v. Bodh Raj, 2014 (2) JKJ 585 [HC].

The Court held that the trial court should have first decided the application under Order 9 Rule 13 CPC and subsequently proceeded to deciding the application by recording the evidence separately. The Court held that severe injustice had been done to the petitioner by clubbing both the proceedings and recording the evidence. The Court agreed that the petitioner should have been allowed to lead evidence in the main proceeding which was initiated by the respondent and hence, suffered from an error apparent on the face of the record. The impugned order also suffered from jurisdictional infirmity which couldn’t be sustained in the eyes of the law. Hence, the impugned order was quashed. [Harjeet Singh v. Taranjeet Kour,  2017 SCC OnLine J&K 746, order dated 18.12.2017]