PARUL NAHAR Vs. SOUMITRA KUMAR NAHAR

JUDGEMENT

(1.) This appeal under Section 19 of the Family Courts Act questions an order of the Family Court rejecting the wife's application for setting aside an order (dated 21.02.2015), setting her down ex parte in the husband's divorce petition.

(2.) The brief facts are that the appellant ("the wife" hereafter) was arrayed as respondent/opposite party in HMA 821/2011 (subsequently re -numbered as HMA 1383/2014). The respondent herein, ("the husband" hereafter) had preferred a petition seeking dissolution of marriage between the parties, which had been solemnized on 10.12.2000. The couple had two minor children - born on 24.05.2005 and 10.10.2008. Presently, they are in the custody of the appellant. During the pendency of proceedings various orders were made at the behest of one or the other parties. On 1.3.2013, a Division Bench of this Court determined Rs.60,000/ - as pendente lite monthly maintenance payouts by the husband to the wife, inclusive of the children's educational expenses. With respect to the visitation rights in regard to the children, the matter was referred to mediation. Later, the wife had preferred the appeal in respect of certain orders made by the Family Court (MAT.A.63/2013). That appeal was permitted to be withdrawn. The Court then observed that by two earlier orders, i.e., 1.3.2013 and 2.4.2013, another Division Bench has desired that the divorce proceedings before the Trial Court should be concluded at the earliest and preferably within a year. By its order dated 29.11.2013, the Court emphasized that the Trial Court would make all endeavour to adhere to the deadline and file an Action Taken Report at the end of the period with its observations.

(3.) The proceedings before the Family Court continued and on different occasions either party, i.e., either husband or the wife approached this Court claiming to be aggrieved by one or other aspect of the family Court's order or proceeding. However, no substantial order was made except on 25.9.2014 (in MAT.A.41/14) where the Division Bench observed - after considering the Trial Court's records - that the order sheets ran into almost 200 pages and that the matter with respect to the cross examination of the husband was still pending. The Court also issued certain directions vis -a -vis mediation in the context of visitation rights of the husband. While so, on 15.9.2014, the case was listed before the Family Court. The counsel for the appellant objected to the conduct of the proceedings on the part of the Presiding Officer, i.e., the Judge, Family Courts. Embarrassed, the judge felt constrained to recuse from the proceedings. In the light of this objection, the District and Principal Judge, Family Court, Dwarka issued a letter of request to the Registrar General of this Court for seeking appropriate orders. On 01.11.2014, the Principal Judge, who was originally incharge of the case Shri Rakesh Siddharth, adjourned the proceedings to enable the appellant to cross -examine the husband. The request for transfer was also noticed in an order of 20.11.2014 in an application in MAT. Appeal No. 41/2014. On 8.12.2014, the case was assigned to another Family Judge, Saket. On that date of hearing, there was no appearance on behalf of the appellant and the Court issued notice to her. Again on 14.1.2015 when the petition was listed before the transferee/new Judge, there was no appearance. The Court issued fresh notice. On the next date of hearing, i.e., 02.02.2015, the appellant was unrepresented. The Family Court, therefore, issued a notice yet again returnable on 21.2.2015. When on the latter date the appellant was unrepresented, she was set down ex parte. In these circumstances, the appellant moved the Court on 09.03.2015 contending that she became aware for the first time of having been set down ex parte on 05.03.2015 when in the presence of her counsel this Court (in another interlocutory proceeding) was informed about the order dated 02.02.2015. It is in these circumstances that the appellant moved the Family Court stating that she was not aware of the proceedings before the new Judge and that her absences in the divorce proceedings were unintentional. This, according to her, amounted to "sufficient cause" necessitating recall of the previous order dated 21.2.2015.