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ORISSA HIGH COURT
Vinod Prasad And S.K. Sahoo, JJ.
Sarat Kumar Mishra —Appellant
versus
Smt. Sandhyarani Satapathy —Respondent
Mata No.63 of 2009
From the order dated 24.09.2009 passed by the Judge, Family Court, Cuttack in Misc. Case No.277 of 2008.
Decided on 14.7.2015
For the Appellant:M/s. Santosh Ku.Swain, Saroj Ku.Rout, D.R.Rath, Advocates
For the Respondent:Mr. Pravat Ku.Mohanty, N.K.Rout, Advocates
IMPORTANT POINT
Ex parte decree of divorce and permanent alimony in favour of the wife could not be set aside if the husband fails to explain his absence on the date fixed and the sufficient cause is shown.
Headnote:Civil Procedure Code 1908- Order 9 Rule 13- Petition for Setting aside ex parte decree of divorce and of permanent alimony- Petition filed by husband under Order 9, Rule 13 dismissed- The reasoning given by the trial Court in rejecting the application was quiet cogent and sound- The evidence on the record was appreciated in giving finding that there was no sufficient cause shown by the petitioner to set aside ex parte decree- One time permanent alimony also upheld. (Paras 9 & 10)
Facts of the Case
Marriage between the parties was solemnized on 09.05.2001 when a cash amount of Rs. 50,000/- and other house hold articles worth Rs. 50,000/- was also given to the petitioner by the family of the respondent including gold ornaments and silver ornaments. Later wife confined her service and has also been visiting for in-laws but her in-laws behaved in a very inhuman manner and subjected her to cruelty and took away her gold and silver ornaments forcibly and that there was frequent assault on her by the husband and she was apprehended danger to her life. The husband appeared after notice in the divorced petition filed by wife through his counsel but subsequently he remained absent and was proceeded ex parte and subsequently ex parte decree of divorce was granted and permanent alimony of Rs. 2.00 Lac was fixed. The husband filed application for setting aside the ex parte order.
Findings of the Court
No explanation was given by the husband for his non appearance on the date fixed. The trial Court held that husband adopted dilatory tactics and due to which the proceedings suffered some adjournment. In the absence of sufficient cause having been shown by him for his absence, his petition was dismissed. The order of the trial Court upheld. The order of permanent alimony of Rs. 2.00 Lac also held to be proper.
Result: Appeal dismissed.
S.K.Sahoo, J.—This is an appeal filed by appellant Sarat Kumar Mishra (hereafter ‘the petitioner-husband’) under section 19 of the Family Courts Act, 1984 challenging the impugned order dated 24.09.2009 of the learned Judge, Family Court, Cuttack passed in Misc. Case No.277 of 2008 in dismissing the petition filed by the petitioner-husband under Order 9 Rule 13 CPC to set aside the ex parte decree dated 12 .11.2008 passed in Civil Proceeding No.177 of 2008 with a further prayer for allowing the petitioner- husband to participate in Civil Proceeding No. 177 of 2008.
2. The respondent Smt. Sandhyarani Satapathy (hereafter ‘the opposite party-wife’) filed a petition under Section 13 of Hindu Marriage Act, 1955 in the Court of the learned Judge, Family Court, Cuttack which was registered as Civil Proceeding No. 177 of 2008 for seeking a decree of divorce against the petitioner-husband and for permanent alimony of Rs.5,00,000/- (Rupees five lakhs).
It is the case of the opposite party-wife that she is the legally married wife of the petitioner-husband and their marriage was solemnized on 9.5.2001 according to Hindu rites and customs and at the time of marriage, cash of Rs. 50,000/- and other household articles worth of Rs. 50,000/- were given to the petitioner-husband and his family members including gold ornaments weighing about 10 bharis and silver ornaments weighing about 30 bharis by her father and other relations. The marriage was consummated in the house of the petitioner- husband. After two months of marriage, the opposite party-wife who was working as a demonstrator in a private college at Cuttack came to her parents’ house for continuing her service in the college where she was working. The opp. party-wife used to visit her in-laws’ house in regular intervals.
It is the further case of the opp. party-wife that the petitioner-husband was very adamant and behaved with her in a very inhuman manner, subjected her to cruelty and forcibly took away all the gold and silver ornaments from her. The petitioner- husband also did not look after her comfort and he had no love and affection for her. Due to frequent assault on her by the petitioner-husband, the opp. party-wife became very much apprehensive of her life and thought that it would be very much harmful and injurious on her part to live in the company of her husband. The petitioner-husband was working as a Computer Operator in CESU at Bhubaneswar and staying at Bhubaneswar and he did not allow the opp. party-wife to stay with him to lead a conjugal life. The opp. party-wife was deprived of resumption of normal conjugal life and cohabitation and all attempt made by her for such resumption was in vain.
3. On being noticed, the petitioner-husband entered appearance in Civil Proceeding No. 177 of 2008 through his counsel on 24.06.2008 but subsequently he remained absent for which the case was set ex parte against him on 23.9.2008.
4. The opp. party-wife filed her evidence affidavit which remained unchallenged.
5. The learned trial Judge vide order dated 12.11.2008 decreed the case ex parte against the petitioner-husband after going through the averments made in the plaint and the unchallenged sworn testimony of the opp. party-wife. Taking into account the destitute condition of the opposite party-wife, while dissolving the marriage solemnized between the parties by a decree of divorce, the learned trial Judge directed the petitioner-husband to pay Rs. 2,00,000/- (Rupees two lakhs) as permanent alimony to the opp. party-wife within two months.
6. The petitioner-husband filed a petition under Order 9 Rule 13 CPC on 10.12.2008 before the learned Judge, Family Court, Cuttack which was registered as Misc. Case No. 277 of 2008 for setting aside the ex parte order dated 12.11.2008 passed in Civil Proceeding No. 177 of 2008.
On being noticed, the opp. party-wife appeared through her counsel.
The learned trial Judge after hearing both the sides came to hold that though the petitioner-husban
