Court No. - 3
Case :- FIRST APPEAL No. - 312 of 2018 Appellant :- Satyendra Kumar Singh Respondent :- Smt. Pratibha Singh Counsel for Appellant :- Rajat Agarwal,Sunil Kumar Kushwaha
Hon'ble Pankaj Mithal,J. Hon'ble Rajiv Joshi,J.
Heard Sri Rajat Agarwal, learned counsel for the appellant.
The appellant-husband filed original suit for divorce No.236 of 2013 under Section 13 of the Hindu Marriage Act, 1955 and obtained an ex parte decree on 19.09.2014.
The respondent-wife applied for setting aside the aforesaid ex parte decree along with an application under Section 5 of the Limitation Act.
The aforesaid delay condonation application as well as the application for setting aside the ex parte decree has been allowed by the family court by the impugned order dated 16.03.2018 on the cost of Rs.250/-.
The submission of learned counsel for the appellant- husband is that the notice of the said proceedings was not accepted by the brother of the respondent-wife and that the respondent-wife had full knowledge of the divorce proceedings.
A bare perusal of the impugned order reveals that the notice of the aforesaid divorce petition was sent in the name of respondent-wife at the address of his parents. The said notice was returned with the endorsement by the brother that she is actually residing with her in-laws ie. in her Sasural.
Subsequently, even though the service was never held to be sufficient or deemed to be sufficient upon the respondent-wife, the case was transferred on 05.09.2013 from the court of District Judge to that of IInd ADJ of which no notice or information was given to the respondent-wife. Later on with the creation of the family court, the case was transferred on 10.12.2013 again without any information or notice to the respondent-wife this resulted in passing of the ex parte decree of divorce.
Since the respondent-wife was not actually served with the notice of the divorce petition nor was given any information of the transfer of the case from one court to another, the family court right came to the conclusion that she has prevented by sufficient cause from appearing in court leading to the decree of divorce.
In such circumstances, we do not find that any illegality has been committed by the family court in setting aside the ex parte decree.
The appeal lacks merit and is dismissed.
Order Date :- 30.4.2018 piyush