Negligent conduct and failure to pursue legal rights were not justified by financial constraints, leading to dismissal of the appeal for setting aside an ex parte divorce decree.

JUDGMENT :

Vipin Sanghi, CJ.

The appellant has preferred the present appeal under Section 19 of the Family Court Act, against the order dated 14.09.2022, passed by the learned Principal Judge, Family Court, Dehradun, in Misc. Case No.227 of 2021, whereby the application under Section 5 of the LIMITATION ACT to seek condonation of delay in filing the application under Order 9 Rule 13 CPC, to seek the setting aside of the ex parte judgment and decree dated 06.08.2016, passed in O.S. No.803 of 2015, Ramesh Lal Khare Vs Kanti Bai, has been dismissed, and, consequently, the application under Order 9 Rule 13 CPC, has also been dismissed.

2. The appellant was the wife of the respondent. Metrimonial disputes arose between them. The appellant was not residing with the respondent. She was residing in Bilaspur, Chhattisgarh. The respondent preferred the aforesaid divorce petition under Section 13 (1)(ib) of the HINDU MARRIAGE ACT , to seek divorce on the ground of desertion. The appellant was served in those proceedings, and she filed her written statement, and also application under Section 24 of the , to seek maintenance, by post. Thus, it is established that the appellant was duly served in the proceedings, and it is not even claimed by her, that she was not served. Apart from sending her written statement, and the application under of the , by post, she did not participate in the proceedings by engaging a lawyer, or appearing herself. Consequently, the case proceeded ex parte, and the Family Court allowed the divorce petition after recording ex parte evidence, vide judgment dated 06.08.2016.

3. Even thereafter, the appellant did not approach, either the Family court, or the Appellate Court, in time, to either seek the setting aside of the judgment and decree dated 06.08.2016, or, preferred an appeal against the same. She took her own sweet time, and filed an application under Order 9 Rule 13 CPC, along with an application under Section 5 of the LIMITATION ACT , after six years of the passing of the said judgment on 10.12.2021. The explanation furnished by the appellant was that, she was poor and did not have the resources to contest divorce proceedings, and it was for this reason that she has sent her written statement and an application under Section 24 of the HINDU MARRIAGE ACT , to seek maintenance, by post. The Family Court did not find merit in the application preferred by the appellant under of the , as there was no reasonable justification offered by the appellant in moving the application under Order 9 Rule 13 CPC. Consequently, the aforesaid two applications have been dismissed.

4. The claim of the appellant that she became aware of the judgment and decree dated 06.08.2016 on 26.11.2021, was not believed by the Court, and, in our view, rightly so, since she was aware of the filing of the divorce petition. As she was duly served in those proceedings, she ought to have been aware about the progress of the said case. Consequently, the Principal Judge, Family Court, has concluded that the appellant was negligent in pursuing her rights. If the appellant did not have the resources, she could have sought legal aid from the Legal Services Authority. Even that, she did not seek.

5. We have perused the record, including the impugned judgment, and we do not find any reasons to interfere with the impugned judgment. In our view, the appellant was negligent, and not interested in pursuing the proceedings, and that is why, she did not appear despite service. She should have known that the proceedings will not await her participation indefinitely.

6. Even the present appeal has been preferred belatedly with a delay of 136 days, which further compounds the negligent conduct of the appellant.

7. We, therefore, find no merit in the present appeal. The