Application by wife for setting aside ex-parte divorce decree rejected in absence of application for condonation of delay of more than 4 years

RRD Vs RS

Delhi HC

20/02/2019

Mat. App. (F.C.) 201 of 2018

About/from the judgment:

The High Court 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.

 

Petitioner wife submitted that the husband played fraud on the court by producing a false report. As per the petitioner, the service report shows that the wife was not found at the given address and the summons were not delivered. Per contra, 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.

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