RAHUL DUBEY Vs. VIBHA DUBEY

JUDGEMENT

(1.) This common order shall dispose of two petitions C.M.(M) No. 1469/2009 and CM No. 633/2010 filed by the petitioner husband under Article 227 of the Constitution of India.

(2.) By way of CM(M) No. 1469/2009, the petitioner has challenged the order dated 4.11.2009 whereby the learned Trial Court had set aside the ex parte judgment and decree dated 8 th December, 2005 while deciding the application moved by the respondent under Order IX Rule 13 read with Section 151 CPC while in CM(M) No. 633/2010, the petitioner has challenged the order dated 12 th March, 2010 passed by the learned Trial Court thereby recalling the order dated 6.4.2005 whereby the Court had closed the right of the respondent to cross-examine the three witnesses examined by the petitioner in support of his case filed under Section 13(1)(ia) of the Hindu Marriage Act.

(3.) To appreciate the controversy involved in both these petitions, it would be necessary to give the background of the facts of the case. The petitioner husband had filed a petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act against the respondent wife which was pending before the learned Civil Judge (Sr. Division) at Ghaziabad, U.P. being registered as O.S. 532/03. In the said divorce petition, the respondent had appeared and filed a written statement and based on the pleadings of the parties, the learned Civil Judge (Sr. Division) Ghaziabad had framed issues and the case was fixed for the evidence of the petitioner. In the evidence, the petitioner had filed affidavits of three witnesses, but these three witnesses were not cross-examined by the respondent despite grant of opportunities with the result that the said Court vide order dated 6.4.2005 closed the evidence of the petitioner by closing the opportunity of the respondent for cross-examination and the case was accordingly adjourned for the evidence of the respondent. It is during this period the Civil Appeal No.2579/2005 filed by the respondent challenging the order of the Allahabad High Court came up for consideration and vide order dated 7.4.2005 the Hon ble Supreme Court directed stay of further proceedings before the Ghaziabad Court and vide orders dated 11.4.2005, the Hon ble Supreme Court directed transfer of the said divorce petition from Ghaziabad Court to Matrimonial Court at Delhi. Acting on the said direction given by the Hon ble Supreme Court, the Ghaziabad Court transferred the case file of the said divorce case to the learned District Judge, Delhi and on the order passed by the learned District Judge, Delhi the matter was assigned to the Court of Shri K.S. Pal, Additional District Judge, Central Delhi. On 10.5.2005 counsel representing the petitioner had appeared before the transferee Court but none appeared on behalf of the respondent and due to the non-appearance of the respondent, the transferee Court directed notice to the respondent, returnable on 1.6.2005. On 1.6.2005 the petitioner again appeared with his counsel but nobody had appeared from the side of the respondent, but since the Presiding Officer was on leave on that date, therefore, the matter was directed to be put up for 5.7.2005 for further proceedings. On 5.7.2005, the counsel for the petitioner had again appeared at the first call while nobody was present from the side of the respondent and the Court accordingly directed the matter to be put up at 12.00 noon. The matter was again taken up by the Court at 1.00 p.m. when again the same was directed to be put up at 2.30 p.m. The matter was taken up yet again at 3.00 p.m. when also only the counsel for the petitioner had appeared, and none appeared from the side of the respondent. On considering the absence of the respondent as intentional, the learned transferee Court after having gone through the direction given by the Hon ble High Court of Allahabad, directing to hold day to day proceedings of the said case and also considering the fact that the respondent was well aware of the fact of transfer of the said case from Ghaziabad to Delhi Courts, held that there was no need to issue any Court notice to the respondent as the respondent was held to have deemed knowledge of the pendency of the said case before the transferee Court. The learned transferee Court after taking into consideration the directions given by the Apex court vide orders dated 11.4.2005 directing the transferee Court to proceed further from the stage at which the case was before the Civil Judge at Ghaziabad, adjourned the matter for 3.8.2005 for the evidence of the respondent. On 3.8.2005, the Presiding Officer was on leave and the matter was adjourned to 12.8.2005 but again on 12.8.2005 the Presiding Officer was on leave and the matter was adjourned to 16.8.2005. On 16.8.2005, none was present for the respondent and the matter was again adjourned to 3.9.2005 for the evidence of the respondent giving the respondent last opportunity, but on 3.9.2005, since nobody had appeared on behalf of the respondent, therefore, the learned Court had closed the evidence of the respondent and fixed the matter for 30.9.2005 for final arguments. On 30.9.2005, ex parte arguments were heard by the learned ADJ and the matter was fixed for orders for 13.10.2005 and finally on 8.12.2005 the learned ADJ allowed the said divorce petition filed by the petitioner whereby the marriage between the parties was dissolved on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act.