IMPORTANT POINT
The main legal point established is the requirement for procedural fairness and adherence to legal provisions in judicial proceedings, particularly in matters of divorce under the Hindu Marriage Act.

JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. Present appeal is against the judgment and decree dated 10/08/2021 passed in H.M.A. No.261/2021 by the Principal Judge, Family Court, Raipur whereby a decree of divorce has been granted in favour of the respondent/wife (applicant therein), which is under challenge by the husband/appellant herein. The appellant is in person before this court.

2. It is not in dispute that the parties were married on 7/12/2012 and subsequently with the passage of time they could not go along which led to filing of the different petitions before the different forums including the divorce. In course of procedure, the wife filed a divorce petition under Section 13(1) of the Hindu Marriage Act, 1955 against husband on various grounds wherein the husband proceeded ex-parte on 7/08/2021 and ex-parte judgment and decree was passed in favour of the wife.

3. The appellant who is husband challenged such ex-parte order in person and he would submit that the way the proceeding was drawn before the family court would show that no opportunity of hearing was actually given to the appellant. He would submit that when the proceeding were drawn ex-parte, at that time under the general direction of the High Court and COVID protocol, the parties were not appearing in person before the Court, however taking benefit of the fact the email was alleged to be sent and having not been responded, the ex-parte proceeding was drawn. Reference is made to the case status, the electronic form which is maintained by the District and Sessions Court with NIC to submit that in the intervening period for certain time when the notice was ordered, the Principal Judge, Family Court was not in hold of the case as the case stood transferred to the Second Additional Family Court Judge. Therefore calling back the case from one court to his court and issuance of notice not only demonstrate the influence of the respondent but also is a procedural irregularity apparent on the face of it. He further submits that sister of the applicant/wife who is holding the post of IPS influenced the court and under those circumstances such abnormal orders were passed. He further submits that the way the proceeding has been drawn is writ large on the face of the record that it was with all bias which cannot be sustained and is liable to be set aside.

4. Per contra, learned counsel for the respondent would submit that the records of the court below would show that email notices were issued as per Order 5 Rule 9 sub-rule (3) of CPC and the records of the Family Court shows the notices were duly served. It is stated despite the service of the notice since the appellant did not enter his appearance the court had no option except to proceed ex-parte. He would further submit that the allegations of the petition would show that marriage in between the parties has come to an end and it is a dead wood, therefore the purpose of resisting the decree do not serve any purpose.

5. We have heard the appellant in person and learned counsel for the respondent.

6. In order to find out as to whether the ex-parte order under challenge was justified, we ventured through the order sheets of the learned family court. Order sheet would show that the case was filed on 12/03/2021 wherein on behalf of the respondent/wife one Advocate Shri Narendra Sahu was allowed to appear to contest and notice was ordered for. Case was further fixed on 29/04/2021. It was in the Court of Shri A.L. Joshi, the then Principal Judge, Family Court. Subsequently, a notification was issued by the High Court during the COVID intervention on 5th April, 2021 and the guidelines were issued to the District Court and the cases were categorized which could be heard during the restricted functioning of the court which reads as under:-

1) Remand matters

2) Bail matters

3) Supardnama matters

4) Appeal & Revision (Both Civil & Criminal)

5) Matters relating to under trial prisoners

6) Cases pending for more than 05 (five) years (Both Civil & Cr