The court clarified that ex parte proceedings can be set aside to ensure both parties are heard, but maintenance orders under Section 24 cannot be challenged through Order IX, Rule 7 CPC.

JUDGMENT

1. This appeal under Section 19 of the Family Court Act, 1984 has been filed by the appellant-husband against his wife assailing the order dated 13.11.2019 passed by learned Family Court No.l, Jodhpur, whereby, the application filed by the appellant herein under Order IX, Rule 7 CPC during the proceeding under Section 9 of the Act of 1955 has been rejected.

2. Brief facts of the case are that the respondent - Smt. Himani Sisodia preferred an application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights against her husband before the learned Family Court on 07.02.2019. After service of the notice of application, the appellant made his appearance on 25.04.2019. Thereafter appellant did not appear before the learned Family Court for consecutive 4-5 dates. On 26.08.2019 learned Family Court ordered ex parte proceeding against the appellant-husband and fixed the next date for pronouncement of order on the application under Section 24 of the Act of 1955, which was filed during the proceeding under Section 9 of the Act of 1955 on 07.02.2019, to which, reply was also filed by the appellant on the first date of his appearance before the learned Family Court i.e. on 25.04.2019.

3. Thereafter appellant filed an application under Order IX, Rule 7 CPC before the learned Family Court on 15.10.2019 with the prayer to set aside the ex parte proceeding initiated against him in the application for restitution of conjugal rights.

4. After taking on record reply to the said application and hearing the parties, learned Family Court passed the impugned order dated 13.11.2019, whereby, the said application under Order IX, Rule 7 CPC was rejected.

5. During the arguments, learned counsel for the appellant submitted that on account of ex parte proceeding, the application filed by the respondent under Section 24 of the Act of 1955 was also decided ex parte against him. It is also submitted that if ex parte proceeding is not set aside then appellant will be deprived of producing the relevant documents regarding his income, whereas, learned Family Court while deciding the application under Section 24 of the Act of 1955 came to the conclusion that the appellant is employed in a Company as a Sales Executive and consequently, he was ordered to pay Rs. 10,000/- per month as maintenance amount to his wife respondent herein.

6. It is also submitted by learned counsel for the appellant that after giving appearance on 25.04.2019, on the next dates appellant fell ill and his counsel did not inform him about the next dates of hearing. In these circumstances, justice requires that ex parte proceeding, initiated against the appellant, should be set aside and the appellant may be heard in accordance with provisions of Order IX, Rule 7 CPC.

7. On the contrary learned counsel for the respondent submitted that the appellant herein did not appear willfully on the 4-5 consecutive dates with the aim to avoid payment of maintenance amount under Section 24 of the Act of 1955.

8. We have heard learned counsel for the parties and perused the record.

9. The appellant herein filed an application under Order IX, Rule 7 CPC before the learned Family Court with the averments that in the proceeding for restitution of conjugal rights order should be passed after hearing both the parties. In the said application the appellant nowhere challenged the order passed under Section 24 of the Act of 1955, hence the arguments of counsel for the appellant that if ex parte proceeding initiated against him is set aside then he will be able to produce documents relating to his income in the application under Section 24 of the Act of 1955 are misconceived.

10. As already observed that the application under Order IX, Rule 7 CPC was preferred for setting aside the ex parte proceedings initiated against the appellant in the petition for restitution of conjugal rights and the order of maintenance passed by the learned Family Court under Section 24 of the Act of 1955 was