MAHENDRA PRASAD DWIVEDI Vs. LAJJI DEVI

JUDGEMENT

(1.) The present appeal under Sec. 19 of the Family Courts Act, is preferred by the appellant-husband to assail the order dtd. 25/8/2022, 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 Sec. 5 of the Limitation Act as well as a second application under Order 9 Rule 13 of the CPC, setting aside the ex-parte divorce decree obtained by the appellant-husband against the respondent dtd. 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 Sec. 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- parte on 12/8/2013. 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.