Ex-parte divorce decrees without proper representation violate the right to a fair trial.

(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)

By this appeal, the appellant has prayed for quashing and setting aside the judgment dated 28.08.2023 passed by the learned Judge, Family Court no.2, Ahmedabad whereby, Family Suit no.494 of 2021, came to be allowed and the marriage solemnised between the appellant and the respondent, came to be dissolved. Challenge is also to the decree which followed the impugned judgment.

2. Ms Dipmala S. Desai, learned advocate for the appellant, while inviting the attention of this Court to the communication dated 09.11.2022 issued by the President and Principal Judge, Legal Service Committee, Family Court, Ahmedabad, appointing the advocate for providing the legal assistance to the appellant, submitted that the Vakalatnama came to be filed only in the month of August 2023 and by the time, the hearing of the Family Suit no.49 of 2021, proceeded further. Further inviting the attention of this Court to the Rojkam, it is submitted that on 03.08.2023, the parties remained present. The appellant had filed an application, Exh.15 for engaging the lawyer; Exh.16, was the Vakalnama and Exh.17 was the application seeking adjournment.

2.1 It is submitted that though Vakalatnama was accepted, the application seeking adjournment, was not considered and immediately on 28.08.2023, the judgment has been rendered, dissolving the marriage of the year 2009. It is submitted that no opportunity was offered to the appellant. It is not that the appellant was not vigilant in defending the suit, as she had no means, she had availed of the legal aid services; however, for the fault of the learned advocate, who did not take immediate steps, the appellant cannot be penalised. It is submitted that since the order has been passed without the appellant submitting any evidence, the matter be remanded.

3. Mr Shyam M. Shah, learned advocate for the respondent has fairly stated that the aspect of filing of the Vakalatnama and passing of the orders, cannot be disputed.

4. Heard the learned advocates appearing for the respective parties. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal. The Court, has considered the documents and paper-book provided.

5. Application was filed by the respondent – husband under the provisions of section 13(A) of the Hindu Marriage Act, 1955 , seeking divorce on various grounds, including the ground of cruelty and desertion. Application was filed on 03.03.2021. On 25.04.2021, owing to the COVID guidelines, the matter was adjourned to 24.06.2021. On 24.06.2021, the appellant did not remain present; however, the matter, was adjourned for filing the reply by the appellant on 23.08.2021. In the interregnum, an application was filed for passing ex-parte order.

6. Again in the year 2022, matter was adjourned in view of the guidelines issued by the High Court during the COVID. The applicant appears to have filed an application for availing the legal aid services, which was allowed by passing an order dated 09.11.2022 and the advocate was assigned to the appellant. The Vakalatnama came to be filed only on 03.08.2023 by the advocate, Exh.16. On the very same date, application, Exh.17 was filed, inter alia, requesting for adjournment. Application seeking adjournment came to be rejected by the Family Court and on 28.08.2023, the impugned judgment came to be passed, allowing the application and dissolving the marriage between the appellant and the respondent dated 07.02.2009. It further appears that application, Exh.19 was filed by the appellant to reopen her right, which also came to be rejected.

7. Considering the above-referred facts, it is clear that the judgment has been passed ex-parte, without there being proper representation by the appella