IMPORTANT POINT
Ex-parte decree obtained by contrivance cannot be allowed to stand.

JUDGMENT

Vipin Sanghi, C.J.—The present appeal under Section 19 of the Family Courts Act, is preferred by the appellant-husband to assail the order dated 25.08.2022, passed by the Family Court, Kotdwar, Pauri Garhwal, in Misc. Criminal Suit No. 02 of 2022, whereby the Family Court allowed the application filed by the respondent-wife under Section 5 of the Limitation Act as well as a second application under Order 9 Rule 13 of the CPC, setting aside the ex-parte divorce decree obtained by the appellant-husband against the respondent dated 30.10.2021.

2. The parties were married on 19.10.1996. They were living as husband and wife under the same roof in Village Maanpur, Patti Sukhrow, Tehsil Kotdwar, District Pauri Garhwal. While so living together as husband and wife, the appellant filed the divorce petition under Section 13(1)(ia) of the Hindu Marriage Act on the ground of cruelty against the respondent vide Matrimonial Case No. 05 of 2013, in the Court of the Family Judge, Kotdwar, Pauri Garhwal. The memo of parties / cause title of the said divorce petition disclosed the address of both the parties as aforesaid, namely, Village Maanpur, Patti Sukhrow, Tehsil Kotdwar, District Pauri Garhwal. The parties were blessed with three sons, namely, Deepak, Kulbhushan and Paras, who were 16 years, 14 years and 10 years old, when the divorce petition was preferred in the year 2013. In the divorce proceedings, the respondent-wife was treated as served with the summons on the basis of the Process Server’s report which showed acknowledgement of the summons by her, in her own hand. Since she did not appear to contest the divorce proceedings, she was proceeded exparte on 12.08.2013. The ex-parte divorce decree came to be passed by the Family Court on 30.10.2021.

3. During the course of the pendency of the divorce proceedings, the appellant did not inform the Court of any alleged change of address of the respondent to claim that she had moved out of her matrimonial home. Thus, as per the record, she continued to reside with the appellant even during the pendency of the divorce proceedings under the same roof.

4. Pertinently, even in the present appeal, the address of both the parties is shown to be the same, which shows that the respondent continues to reside in her matrimonial home even now.

5. After the appellant had obtained the ex-parte decree of divorce on 30.10.2021, the respondent-wife moved the aforesaid two applications on 23.05.2022 - one under Section 5 of the Limitation Act to seek condonation of delay in moving the second application under Order 9 Rule 13 CPC, and the other, to seek the setting aside of the ex-parte decree of divorce. The respondent claimed that the conduct of the appellant in relation to other woman gave rise to a controversy between the parties and, at that stage, the appellant disclosed to the respondent that he had already obtained a decree of divorce against her. It is only thereafter, that she moved the aforesaid two applications on 23.05.2022. In the application, the respondent stated in paragraph 8, as follows:—

“(Matter In Other Language)”

6. The application was contested by the appellant by filing his reply / objection, wherein he stated in paragraph 5, as follows:—

“(Matter In Other Language)”

7. In the impugned order, in paragraph 7, the Family Court observed as follows:—

“Learned counsel for the applicant argued that the applicant had not received the summons sent by registered post and the summons paper number 9A which the opposition is asking to be served on the petitioner, was also got signed by the applicant saying that in any case he has to testify and kept the paper with him and the applicant never got to know about the pending divorce case against her. In the light of the above discussion in this application, it has been found that the opposition is also residing with the applicant, therefore, in view of the relationship and mutual trust between the husband and wife, the opposition cannot ask an