JUDGMENT :

Mr. Yogendra Kumar Purohit, J. - The instant civil misc. appeal under Section 19 of the Family Court Act, 1984 and Section 28 of the HINDU MARRIAGE ACT , 1955 has been preferred by the appellant against the order dated 21.10.2022 passed by learned Judge, Family Court No.2, Jodhpur ("for short "Family Court") in Misc. Case No.3/2022 dismissing an application preferred by the appellant under Order 9 Rule 4 & 8 CPC read with Section 151 CPC seeking restoration of the divorce petition which was dismissed for default of appearance and non-prosecution.

2. Brief facts giving rise to the present appeal as depicted from the record are that the marriage between the appellant and the respondent was solemnized according to the Hindu Customs and Rites on 25.01.1991 at Lucknow and out of the said wedlock, two children were born namely Niharika and Neelay. However, on account of differences cropped up between the parties, they decided to dissolve their marriage by mutual consent and a compromise was also arrived at between the parties. Accordingly, the appellant and the respondent jointly preferred a petition on 4.10.2018 before the Family Court under Section 13B of the HINDU MARRIAGE ACT seeking a decree of divorce by mutual consent, which was registered on 5.10.2018 and ordered to be posted for 8.4.2019 awaiting second motion and for evidence of the parties. However, neither the appellant nor his counsel (Nyaya Mitra) appeared before the Family Court after 5.10.2018 despite several dates fixed in the matter. Ultimately, on 1.9.2021 when the appellant and his counsel (Nyaya Mitra) did not appear, the Family Court dismissed the petition in default of appearance and non-prosecution.

3. Aggrieved by the said order dated 1.9.2021 dismissing the divorce petition in default of appearance and for non-prosecution, the appellant preferred application for restoration of the petition as aforesaid stating therein that the appellant resides at Dubai, United Arab Emirates and presently he is residing at Belgium and since the Corona Virus outbreak was in vogue, he could not appear before the Family Court on 1.9.2021. It is stated that upon receipt of the information from respondent on 15.12.2021, he came to know about dismissal of the divorce petition for non-prosecution vide order dated 1.9.2021 and thereafter has filed the present application for restoration on 3.1.2022. It was also submitted that the non-appearance of the appellant on the date fixed was bonafide and not intentional, and accordingly prayer was made to restore the divorce petition.

4. A reply to the application preferred by the appellant seeking restoration of the divorce petition, was filed by the respondent and seriously opposed the application and prayed to reject the same.

5. The learned Family Court after hearing both the parties, by a detailed order rejected the restoration application on 21.10.2022. Hence, this appeal.

6. We have heard learned counsel for the parties finally at this stage and carefully gone through the material available on record.

7. Learned counsel appearing for the appellant contended that the learned Family Court has seriously erred in dismissing the divorce petition for non-prosecution, as a matter of fact, after expiry of six months' period, even in absence of the appellant, the Family Court should have passed a decree of divorce. It is submitted that the Family Court was not justified in rejecting the application seeking restoration of the divorce petition while observing that under Section 13B of the HINDU MARRIAGE ACT , a petition is filed by the parties seeking divorce jointly, therefore, the same cannot be restored on the application