IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

THE HON’BLE THE CHIEF JUSTICE SRI VIPIN SANGHI

AND

THE HON’BLE SRI JUSTICE RAMESH CHANDRA KHULBE

APPEAL FROM ORDER NO. 331 OF 2022

26^th SEPTEMBER, 2022

Between:

Mahendra Prasad Dwivedi

…… Appellant

and

Lajji Devi

…… Respondent

Counsel for the appellant

:

Mr. Navnish Negi, learned counsel

Counsel for the respondent

: --

The Court made the following:

JUDGMENT: (per Hon’ble The Chief Justice Sri Vipin Sanghi)

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

2

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 ex-

3

parte 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

4

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:

“fd i=koyh ij tks leu dh izfr izkfFkZuh@izfrokfnuh dks izkIr gksuk n’kkZ;k gS

og izkfFkZuh@izfrokfnuh }kjk izkIr ugh gS cfYd foi{kh@oknh us gh izkfFkZuh@izfrokfnuh

ds gLrk{kj cukdj izkIr dh gS D;ksfd foi{kh@oknh o izkfFkZ