Allahabad High Court
Smt. Anshu vs Udham Singh on 22 November, 2019
Bench: Bala Krishna Narayana, Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 4 Case :- FIRST APPEAL No. - 919 of 2017 Appellant :- Smt. Anshu Respondent :- Udham Singh Counsel for Appellant :- Nipun Singh,Nipun Singh Counsel for Respondent :- Jagdish Prasad Mishra Hon'ble Bala Krishna Narayana,J.
Hon'ble Rohit Ranjan Agarwal,J.
Heard Sri Nipun Singh, learned counsel for the appellant and Sri Jagdish Prasad Mishra, learned counsel for the respondent.
The instant first appeal has been filed by the appellant against the order dated 14.12.2017 passed by the Principal Judge, Family Court, Baghpat in Misc. Case No. 33 of 2017; Smt. Anshu Versus Udham Singh which was instituted on the basis of the application filed by the appellant before him under Order IX, Rule 13 of the Code of Civil Procedure with the prayer to set aside the exparte judgement and decree of divorce passed in Case No. 428 of 2015; Udham Singh Versus Smt. Anshu, under Section 13 of the Hindu Marriage Act.
Briefly stated, the facts of the case are that the marriage between the appellant and respondent was solemnized on 27.11.2014 according to Hindu rites and customs. The appellant alleges that she was turned out of her matrimonial home on 5.4.2015 after the additional demands of dowry made by the respondent and his family members could not be fulfilled and thereafter she filed an application on 1.10.2015 at P. S.-Khajoori Khas, Delhi for re-entering in her matrimonial home. Thereafter the respondent started residing with the appellant at House No. F-163, Lane No. -03, Ganga Vihar, P. S.-Gokulpur, district-North East, Delhi-94.
It appears that a petition was filed by the respondent under Section 13 of the Hindu Marriage Act before the Principal Judge, Family Court, Baghpat which was registered as Case 428 of 2015. A perusal of the plaint of the aforesaid divorce case which has been brought on record as Annexure 1 to the affidavit filed along with the stay application accompanying this appeal, indicates that the address of the appellant in the plaint was mentioned as House No. 373, Lane No. 5, Across Railway Line, In front of Railway Station Shamli, P. S.-Shamli, district-Shamli. The summons of the aforesaid case was issued at the address mentioned in the plaint twice by registered post but neither the undelivered cover nor the acknowledgement was received and after publication of notice in two newspapers in Shamli on 15.9.2016 and 6.10.2016, the Principal Judge, Family Court after deeming the service on the appellant to be sufficient, passed an order for proceeding ex parte, which culminated into passing of the order of divorce by the Principal Judge, Family Court, Baghapt on 3.3.2017. When the aforesaid fact came to the notice of the appellant, she moved an application under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the order dated 3.3.2017 which was registered as Misc. Case No. 33 of 2017. Against the application filed by the appellant under Order IX, Rule 13 of the Code of Civil Procedure, the respondent filed a detailed objection, copies whereof have been brought on record as Annexures 7 and 8 to the affidavit filed along with the stay application accompanying this appeal. The parties also filed documentary evidence in support of their respective claims which have been referred to and dealt with in detail by the Principal Judge, Family Court, Baghpat in the impugned order, which we shall refer to, as and when, the context so requires.
Upon perusal of the application filed by the appellant under Order IX, Rule 13 of the Code of Civil Procedure, it appears that her claim for recall of the exparte judgement and decree of divorce dated 3.3.2017 was based primarily on the fact that the respondent had obtained the exparte decree by practising fraud upon the Court by wrongly mentioning that the appellant was residing at the address of Baghpat, whereas she was residing in New Delhi.
It is contended by learned counsel for the appellant that while rejecting the application filed by the appellant under Order IX, Rule 13 of the Code of Civil Procedure, the Principal Judge, Family Court, Baghapt has not only failed to record any finding but failed even advert to the intrinsic issue regarding the place, where the appellant was residing at the time of the institution of the divorce suit, which has totally vitiated the impugned order rendering it liable to be set aside.
Sri Jagdish Prasad Mishra, learned counsel for the respondent despite advancing extensive arguments before us has failed to demonstrate that the Principal Judge, Family Court, Baghpat had dealt with the issue of the address of the appellant where she was residing at the time of the institution of the case or has given any finding.
In our opinion, the fate of the application under Order IX, Rule 13 of the Code of Civil Procedure is dependant upon the fact whether the appellant was residing at her address in New Delhi or at Baghpat at the time of the institution of the divorce petition and the Principal Judge, Family Court, Baghpat could have rejected the application under Order IX, Rule 13 of the Code of Civil Procedure only after recording a finding that the appellant was residing at the address of Baghpat and this having not been done, we are of the view that the order rejecting the application under Order IX, Rule 13 of the Code of Civil Procedure deserves to be set aside.
Besides, there is material on record in the form of the application under Section 12 of the Protection of Women From Domestic Violence Act, which the respondent admittedly was contesting before Karkardooma Court, New Delhi, in which the appellant was shown residing in New Delhi. Copy of the aforesaid application is annexed as Annexure 2 to the affidavit filed along with the stay application accompanying this appeal.
In view of the above also, we can attribute to the respondent that he had knowledge about the fact that the appellant was residing in New Delhi and not at Baghpat and he has falsely mentioned in the plaint that the appellant was residing in Baghpat with the ulterior motive of obtaining an ex parte divorce decree.
In this view of the matter, this first appeal is allowed, the order dated 14.12.2017 passed by the Principal Judge, Family Court, Baghpat in Misc. Case No. 33 of 2017 is set aside and the matter is remitted back to the Principal Judge, Family Court, Baghpat with the direction to him to decide Misc. Case No. 33 of 2017 afresh in the light of the observations made hereinabove expeditiously, preferably within a period of two months from the date of production of certified copy of this order without granting unnecessary adjournments to either of the parties. Learned counsel for the parties have undertaken before us that their clients will appear before the Principal Judge, Family court, Baghpat on 10.12.2019 hence, notice need not be issued to them.
Order Date :- 22.11.2019 HR