Rajasthan High Court - Jodhpur
Vikram Sankhala vs Smt. Sarita (2026:Rj-Jd:1002-Db) on 9 January, 2026
Author: Yogendra Kumar Purohit
Bench: Yogendra Kumar Purohit
[2026:RJ-JD:1002-DB] (1 of 6) [CMA-2308/2024]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 2308/2024
Vikram Sankhala S/o Rajendra Sankhala, Aged About 39 Years,
R/o Thaliyo Ka Bass, Inside Sojati Gate, Jodhpur Working Place -
Vikram Sankhala, Post Head Casher Under Shrman Branch
Manger, State Of Bank Of India Near Marudhar Petrol Pump,
Nagaur Road, Bavadi, Jodhpur
----Appellant
Versus
Smt. Sarita W/o Vikram, Aged About 35 Years, D/o Dhanraj Ji
Gehlot, Presently Residing At C/o T Krishnamurti Halappa Circle,
Navi Cross C Road, Bhadravathi, Shimoga, Karnataka
----Respondent
For Appellant(s) : Mr. Dilip Singh Baghela
For Respondent(s) : Mr. Bhadrawati Sihoma
HON'BLE MR. JUSTICE ARUN MONGA
HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT
Order
09/01/2026
1. The instant appeal is filed challenging the impugned
judgment/order dated 24.04.2024 passed by learned Family Court
No.2, Jodhpur in Civil Misc. Case No.44/2022 (NCV No.10/2020)
vide which an application filed by the respondent-wife under Order
9 Rule 13, CPC was allowed.
2. Briefly stated facts of the case are that the appellant
(husband) and respondent (wife) were married on 13.12.2006 at
Jodhpur as per Hindu customs and rites. From the wedlock, they
have two children: a daughter Rachna (born 31.10.2007 with
serious congenital ailments) and a son Priyansh (born
01.01.2016). Both children are residing with the respondent.
2.1 The respondent alleged that soon after marriage she was
subjected to cruelty and dowry demands by the appellant and his
family. During her pregnancy, she was sent to her parental home
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in Karnataka, where she delivered a daughter suffering from
multiple medical conditions requiring surgeries. The appellant and
his family allegedly refused to visit, support treatment, or keep
the child and even asked to kill the daughter.
2.2. In 2008, the appellant filed a petition under Section 9 of
Hindu Marriage Act, 1955 for restitution of conjugal rights, which
was decreed ex parte. After compromise, the parties resumed
cohabitation from 18.04.2010. As the appellant had a job in the
bank in the village Kalu Anandpur, District Pal, due to lack of
medical facilities and refusal by the appellant's family, the
daughter remained with her maternal grandparents in Karnataka.
2.3. The respondent alleged further harassment and monetary
demands, including pressure to bring money for purchasing a
house. Her father allegedly paid Rs.5 lakhs on 25.03.2018, and
later the appellant demanded Rs.20 lakhs, assaulted her and the
children, withdrew Rs.13 lakhs from their joint account, and
expelled them from the matrimonial home on 11.04.2018. The
respondent then went to Karnataka and filed an application under
Section 125 Cr.P.C for maintenance.
2.4. The appellant filed a petition under Section 13 of Hindu
Marriage Act, 1955 for divorce, without disclosing the birth of the
son. Notice was received by the respondent on 14.01.2020. As she
resided in Karnataka, her advocate sought time. On 29.02.2020,
despite the advocate's appearance, the court proceeded ex parte
against the respondent and the hearing date was fixed on
31.03.2020. During the COVID-19 lockdown, the respondent
informed the court by letter dated 20.07.2020, but ultimately an
ex parte divorce decree was passed on 13.08.2020.
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2.5. The respondent claimed she relied on her advocate, who
failed to take proper steps and misled her about filing an
application to set aside the decree. She later filed an application
under Order 9 Rule 13 CPC along with an application under
Section 5 of the Limitation Act, seeking condonation of delay,
citing lockdown restrictions, residence in Karnataka, and High
Court notifications restraining adverse orders during the
pandemic.
2.6. The appellant opposed the application, denying allegations of
cruelty and dowry, asserting that the respondent deliberately
remained absent, and stating that he regularly paid maintenance.
He contended that after expiry of the appeal period, he remarried
on 04.10.2020 and now has a child from the second marriage. He
further alleged misconduct and cruelty by the respondent and
prayed for dismissal of her application.
2.7. After considering the pleadings and material on record, the
Family Court No. 2, Jodhpur, vide order dated 24.04.2024,
allowed the respondent-wife's application under Order 9 Rule 13
CPC and set aside the ex parte divorce decree dated 13.08.2020.
Aggrieved by the said order, the appellant-husband has
approached this Court by way of filing the instant appeal.
3. Learned counsel for the petitioner contends that the
impugned order suffers from serious errors of law and fact, as the
learned trial court failed to properly appreciate the evidence on
record and passed a judgment unsustainable in law. Despite due
service of notice on 14.01.2020, the respondent deliberately
remained absent on several dates, leading to lawful ex parte
proceedings on 29.02.2020 and an ex parte decree of divorce
dated 13.08.2020, which was duly communicated to her.
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3.1. It is argued that the respondent neither appeared in earlier
proceedings under Section 9 of the Hindu Marriage Act nor raised
any grievance against her advocate, showing clear negligence.
After expiry of the statutory appeal period, the petitioner validly
remarried on 04.10.2020 and now has a child from the said
marriage, a material fact ignored by the trial court.
3.2. The learned counsel further submits that the respondent
herself desired divorce and acted carelessly, and therefore could
not be permitted to reopen the case and take advantage of her
own fault, contrary to settled law. The trial court erred in treating
the matter mechanically, as if it were a routine civil dispute,
without considering the settled matrimonial status of the
petitioner. Hence, the impugned order deserves to be set aside in
the interest of justice.
4. Per contra learned counsel for the respondent supports the
impugned order and states that same has been passed perfectly
within the four corners of law after considering the entire gamut of
facts and circumstances, which clearly reflected that the appellant
had misled the court to proceed ex parte against the respondent.
5. Having heard the rival contentions, and after perusal of the
impugned order, we are unable to persuade ourselves that the
order under challenge suffers from any illegality so as to warrant
any interference by this court
6. English translation of relevant part of the impugned order
dated 24.04.2024 is as under:-
" (xv) From perusal of the original record, it is apparent that the petition
under Section 13 of the Hindu Marriage Act dated 19.11.2019 was filed by
the non-applicant Vikram Sankhla against the applicant Sarita in Civil
Original Suit No. 935/2019. After office report, the case was registered and
notices were issued. On 14.01.2020, service of notice upon the applicant
Sarita was effected. On behalf of the applicant, a vakalatnama and an
application regarding information were filed through counsel, praying that
the date be fixed after 20.04.2020, and the matter was fixed for 29.02.2020.
On 29.02.2020, due to (Uploaded
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were initiated and the next date was fixed as 31.03.2020. However, due to the
COVID period, the matter was taken up on 05.08.2020. An application sent
by post on behalf of the applicant was taken on record on 05.08.2020 and the
next date was fixed as 11.08.2020. On 11.08.2020, evidence was recorded and
on 13.08.2020, an ex-parte judgment and decree were passed. The applicant
Sarita filed the present application along with an application under Section 5
of the Limitation Act on 05.11.2020 stating that she had received notice on
14.01.2020 but could not appear as she is a resident of Karnataka. On
29.02.2020, her advocate was present but was not heard, and ex-parte
proceedings were initiated. The applicant had sent an application dated
20.07.2020 by post requesting time till the end of COVID-19, reference of
which appears in the order dated 05.08.2020. Despite this, the ex-parte
judgment and decree dated 13.08.2020 were passed. Reference was also made
to the circular issued by the Hon'ble High Court. As per Circular No.
23/PI/2020 dated 05.08.2020, it was directed that till 31.08.2020, no adverse
orders be passed due to the COVID-19 pandemic. Despite this, the ex-parte
decree was passed on 13.08.2020, which does not appear proper.
(xvi) Regarding the contention of the non-applicant that the application has
been filed belatedly, it is observed that after the ex-parte decree dated
13.08.2020, the applicant sent an application by email dated 06.10.2020 for
setting aside the ex-parte proceedings, which is on record. Thereafter, on
05.11.2020, the applicant personally appeared and filed the present
application. Although the application was filed with a delay of about 53 days,
the applicant resides in Karnataka and at that time COVID-19 pandemic was
prevalent, and the Hon'ble Supreme Court and High Court excluded the said
period from limitation. Therefore, the delay does not bar the application, and
the reasons given for delay appear to be proper. Justice also demands that
both parties be heard on merits.
(xviii) Regarding the contention of the non-applicant that after expiry of 30
days from the ex-parte decree dated 13.08.2020, he married another woman
on 04.10.2020 and has a child from the said marriage, Section 15 of the
Hindu Marriage Act provides that remarriage can take place only after expiry
of the appeal period of 90 days. Appeal against the decision of this Court lies
before the Hon'ble High Court. As per Article 116 of the Limitation Act, the
appeal period is 90 days. The non-applicant contracted a second marriage
within 47 days of the ex-parte decree, which is not legally valid.
(xix) In these circumstances, it is proper to allow the applicant's application
under Order 9 Rule 13 read with Section 151 CPC and to set aside the ex-
parte judgment and decree dated 13.08.2020.
ORDER
(xx) Consequently, the application filed by the applicant Smt. Sarita under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure against the non-applicant Vikram Sankhla is allowed, and the ex-parte judgment and decree dated 13.08.2020 passed in Civil Original Suit No. 935/2019, Vikram Sankhla vs. Sarita, are hereby set aside, and the case is restored to its original number."
7. The impugned order is not only well reasoned but also the facts narrated therein are rather a telling tale on the conduct of appellant-husband. However, we refrain to make any comments thereof.
8. It is evident that the respondent had appeared through counsel and had also sought adjournment (Uploaded owing on 22/01/2026 at 05:54:58 PM)to her residence in (Downloaded on 30/01/2026 at 08:46:41 PM) [2026:RJ-JD:1002-DB] (6 of 6) [CMA-2308/2024] Karnataka and the prevailing COVID-19 situation. The initiation of ex-parte proceedings on 29.02.2020, despite the presence of counsel, and the passing of the ex-parte judgment and decree dated 13.08.2020, even after an adjournment application dated 20.07.2020 was taken on record, also reflects procedural lapse. More particularly, Circular No. 23/PI/2020 dated 05.08.2020 issued by this Court directed that no adverse orders be passed till 31.08.2020 due to the pandemic, yet an ex parte decree was passed in violation thereof.
9. In the premise, the delay in filing the application under Order 9 Rule 13 CPC stood sufficiently explained, as the applicant had moved an application by email on 06.10.2020 and thereafter personally appeared on 05.11.2020. In view of the orders of the Supreme Court of India and the High Court excluding the COVID period from limitation, the delay cannot operate as a bar qua the respondent to seek recalling of the ex parte decree/proceedings.
10. As an upshot, we find no ground to interfere in the order dated 24.04.2024 passed by learned Family Court No.2. Jodhpur in Civil Misc Case No.44/2022 (NCV No.10/2020) vide which an application filed by the respondent-wife under Order 9 Rule 13, CPC was allowed.
11. The appeal is dismissed.
(YOGENDRA KUMAR PUROHIT),J (ARUN MONGA),J 35-Devanshi/-
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