Madhya Pradesh High Court
Manisha vs Rakesh on 7 May, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
On the 7th of May, 2022
First Appeal No.667 of 2016
Between:-
Manisha W/o Rakesh Thakur,
Aged 32 years, Occupation: House Wife
R/o Village- Dobhi, Tehsil- Tehdukheda, District- Narsinghgarh,
M.P.
.....Appellant
(Shri Amar Singh Rathore, learned counsel for the appellant)
And
Rakesh S/o Fulsingh Thakur,
Aged about 36 years, Occupation: Service, R/o 212, Vaibhav Nagar,
Kanadia Road, Indore. Prsent address: - Nihas Colony, opposite
Aykar Bhavan, Itarsi, M.P.
.....Respondent
None for the respondent.
PER :- JUSTICE AMAR NATH (KESHARWANI)
JUDGMENT
1. This first appeal under Section 19 of Family Courts Act had been filed by the appellant being aggrieved by the impugned order dated
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13.05.2016 passed by First Additional Principal Judge, Family Court, Indore in MJC Case No.34/2015 whereby the application under Order 9 Rule 13 read with Section 151 of CPC was filed on behalf of the appellant to set aside ex-parte judgment and decree of divorce dated 23.09.2013 passed under Hindu Marriage Act case No.591/2011 (in appeal wrongly mentioned as 519/2011) was dismissed.
2-A. The brief facts of the case are as follows; the appellant got married with respondent by Hindu rites and rituals on 23.05.2005 at Itarsi, District-Hoshangabad. After the marriage, appellant started living with the respondent and performed marital obligations. The appellant gave birth to a child- Ankush Thakur (aged about 5 years as of the date of filing of petition), who is presently residing with the appellant. After the marriage, the respondent misbehaved and ill treated the appellant and due to non fulfillment of the demands for dowry, he kicked her out of her matrimonial house, after that the respondent filed the divorce petition i.e. HMA case No.591/2011 under Section 13 of Hindu Marriage Act. Learned Family Court issued notice to the appellant and notice was served upon her and she appeared before the Family Court and submitted her written statement and the case was dismissed in absence of the respondent on 08.12.2011 and after that, the respondent filed an application for restoration of the original case, which was registered as MJC No.09/12 and as per order dated 15.05.2012, restoration application was allowed and restored the HMA case No.591/2011 under Section 13 of Hindu Marriage Act on original number and passed an ex-parte decree of divorce in favour of respondent on 23.09.2013. It is also stated that after restoration of HMA case No.591/2011 on original number, no notice was served to the appellant and she never read the said news paper in which
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notice was published and learned about it only on 27.01.2015, when the appellant appeared before the learned JMFC, Gardarwada in her maintenance case.
2-B. It is also stated that the appellant received information regarding ex-parte decree of divorce first time in maintenance proceeding which was pending before JMFC, Gardarwada and after that the appellant filed an application for getting certified copy of ex-parte decree on 16.02.2015 and she obtained the certified copy of ex-parte decree on 04.03.2015, then she filed an application under Order 9 Rule 13 read with Section 151 of CPC for setting-aside of the ex-parte decree before the learned First Additional Principal Judge, Family Court, Indore which was registered as MJC Case No.34/2015. The learned Family Court issued notice of that application to the respondent. The respondent appeared before the learned Family Court and filed reply to that application. After recording the evidence of the parties, learned Family Court passed the impugned order and dismissed the appellant's application against which this present First Appeal has been filed.
03. The grounds of appeal are that the order of Family Court is contrary to the law and facts on record. The divorce petition filed by the respondent before the learned Family Court was on false and baseless grounds, therefore, the respondent deliberately did not appear before the learned Family Court as he wanted to withdraw that case, hence, HMA Case No.591/2011 was dismissed in absence of respondent by the learned Family Court on 08.12.2011 and after six months, on 15.05.2012 the respondent filed an application for restoration of divorce petition before the learned Family Court, which was allowed by the learned Family Court and the learned Family Court issued notice to the appellant but no notice
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was served upon the appellant and learned Family Court also directed to publish notice in daily newspaper- Nav Bharat, Jabalpur, but the appellant never came to know about the publication of that notice and, therefore, she could not appear before the learned Family Court and the learned Family Court passed ex-parte decree in favour of the respondent. The reason of absence of the appellant in the divorce petition is very reasonable and sufficient, but the learned Family Court erred in not considering the material aspects and wrongly dismissed the application under Order 9 Rule 13 of CPC filed on behalf of the appellant, whereas in support of the contention raised in the application, the appellant gave her statement and also examined other witnesses, but learned Family Court has not considered these material aspects and wrongly dismissed the appellant's application. It is also submitted that the order of learned Family Court is bad in law and suffers from infirmities and prays for setting aside the impugned order.
04. Learned counsel for the appellant submits that the appellant (wife) had no knowledge about restoration of HMA Case No.591/2011 under Section 13 of Hindu Marriage Act and she never refused to accept notice and she never had knowledge about publication of notice in newspaper. So she could not appear before the concerned Family Court, Indore on the dates of hearing i.e. 03.04.2013, 08.04.2013 and 20.06.2013 and also on all subsequent dates fixed by the concerned Family Court and on the date when ex-parte divorce decree was passed by the concerned Family Court. Counsel for the appellant further submits that appellant deliberately did not appear before the concerned Family Court on the date of hearing i.e. 08.12.2011, in divorce case and, therefore, the case was dismissed. After restoration of HMA Case No.591/2011, no notice was
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served upon the appellant and ex-parte divorce decree was passed against the appellant. Learned counsel for the appellant also submits that prior to decree of divorce, the respondent got married to another woman and in support of that argument, he points out the birth-certificate (Annexure P-
7) in which the date-of-birth of the child is mentioned as 30.07.2013 and name of the father mentioned as "Rakesh Thakur" (respondent) and name of mother as "Radha Thakur" and submits that the respondent has got the decree of divorce fraudulently, so prays for setting aside the impugned order and decree of divorce passed by Family Court, Indore in HMA Case No.591/2011. Learned counsel for the appellant placed reliance on Sohanlal Vs. Manju W/o Sohanlal 2010 (3) MPLJ, 586 (Gwalior Bench).
05. We have heard the learned counsel for the appellant and perused the record as well as the impugned order.
06. Restoration order of HMA Case No.591/2011 which was passed by Family Court in MJC No. 09/12 dated 15/05/12 shows that the order passed was also ex-parte.
07. In HMA Case No.591/2011 the appellant has filed her written statement, in which she has denied the pleadings of petitioner (in present case respondent) and pleaded that "respondent had extra-marital affair with woman (Radha Bai) and respondent was living with her in Indore, and when appellant found about this fact, she filed complaint u/s 494/34 and u/s 109 of IPC on 03/08/2011, which shows that the idea of second marriage was already in the mind of respondent." It is also pleaded that knowing the fact that the father of appellant will not be able to give anymore dowry, the respondent started treating the appellant with cruelty and on 05/07/2008 kicked her out along with her son, from their
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matrimonial home.
08. In MJC case No. 34/15, respondent admitted in the cross- examination that it is his name stated as father in the birth certificate (ExP-7) of child (Lakshya) born out of second marriage. Furthermore, in the aforementioned birth certificate (ExP-7) of child (Lakshya), name of Radha Bai is stated as mother. Date of birth of child mentioned in Birth Certificate (ExP-7) is 30/07/2013, which is prior to the date of ex-parte divorce decree passed in favour of respondent.
09. ExP-6 is a document (information regarding non-cognizable offence) which was registered on instance of father of appellant, in ExP-6 it is mentioned that Rakesh Kumar(Respondent) got married to another woman(daughter of Jeevan Lal Khopar) while still being married to appellant. Therefore, document ExP-6 and ExP-7 supports the pleading of the appellant that "she and her son were kicked out of their matrimonial house by respondent, so that he can get married to another woman."
10. Record of this court also reveals that this court has passed an order on 12/09/2019 for payment of Rs.5000/- per month as maintenance, (which included Rs.2200/- maintenance fixed by order of Family Court) on the application u/s 24 of HMA filed on behalf of appellant. After that order, respondent and his counsel never appeared before this court as mentioned in the proceedings of this court dated on 29/11/2021, 08/12/2021 and 15/12/2021.
11. Record of this court also reveals that an I.A.650/2021 was filed on 22/09/2021 on behalf of the appellant stating that respondent has never paid full amount of maintenance in time and Rs. 1,67,000/- remains unpaid till the filing of I.A. No.650/2021.
12. Proceedings of HMA case No. 591/2011, also shows that at
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the stage when the case was fixed for reply of application filed on behalf of appellant u/s 24, respondent didn't appear and therefore the case was dismissed in default on 08.12.2011 and the HMA case No. 591/2011 was restored by ex-parte order dated 15.05.2012, and an ex-parte divorce decree was acquired by the respondent.
13. Record of HMA case No. 591/2011 also shows that after its restoration, service of notice by ordinary mode was not in record and regarding that nothing is mentioned in the order sheet of divorce case. Although the Family Court had directed on 18/05/2012 that process be issued by ordinary mode as well as registered mode, in such situation the Family Court should have waited for the service report of notice made by ordinary mode, but Family Court did not do so, and looking at the denial report mentioned on the envelope of notice sent by registered post, ordered for serving the notice to appellant by publication in news paper. It is also pertinent to mention here that respondent has not examined the postman who scribed the "denial report". So only on the basis of publication of notice in newspaper the Family Court has wrongly proceeded ex-parte. Hence, it cannot be said that the appellant deliberately did not appear before the Family Court on date of hearing.
14. In divorce case in support of petition, the respondent (husband) has examined himself alone, since the appellant(wife) was not there, therefore, the evidence remained uncontroverted but the learned Family court ought not to have believed the statement and granted the ex- parte. The respondent has not examined any other witness to support the allegation regarding cruelty and desertion caused by appellant towards them.
15. Record of divorce petition also shows that the case was
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referred for conciliation to conciliator on 07/09/2011, and its report was attached in HMA No.591/2011, in which it is mentioned that the respondent denied to live together with the appellant, though the appellant wished to live with the respondent (husband).
16. So, the respondent has failed to establish allegations of cruelty by the appellant. Even in ex-parte proceedings, the burden on the plaintiff to prove his case by leading evidence is mandatory, merely on the basis that there is no denial or cross-examination of opposition, the Court is not bound to grant ex-parte decree unless the case is made out. The deposition of the respondent(Husband) in the divorce petition does not establish cruelty by the appellant, hence the decree is unsustainable and liable to be set aside.
17. Therefore, after considering the facts and circumstances of the case, as discussed above, we have the view that an opportunity of hearing be made available to all parties of case and principle of natural justice be complied with and dispute between the parties be resolved on merit of the case. The ex-parte divorce decree dated 23.09.2013 and the impugned order dated 13.05.2016 whereby an application under Order 9 Rule 13 read with section 151 of C.P.C. was dismissed, are hereby set aside.
18. Parties are directed that they appear before the Family Court on 27.06.2022 and if the respondent pays or deposits the total due maintenance amount, in compliance with the order of this Court passed on 12.09.2019, then the HMA case No.591/2011 be restored in original number and after framing of the issues and following the procedure prescribed by the law, and giving the proper opportunity to the parties, the case be decided afresh on merit.
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19. Shri Brijendra Gupta, learned counsel, who appeared before this Court on behalf of respondent on 10.12.2018, is directed to inform the respondent regarding this order and the date fixed for appearance before concerned Family Court, Indore and if respondent does not appear on 27.06.2022 then the Court shall issue notice to him.
Let the record of HMA case No.591/2011 and MJC Case No.34/2015 be sent back to the Family Court.
(VIVEK RUSIA ) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
N.R.
Digitally signed by
NARENDRA KUMAR
RAIPURIA
Date: 2022.05.07
19:08:44 +05'30'