PUSHPA DEVI Vs. SANTOSHI LAL SHARMA

JUDGEMENT

(1.) Appellant-wife has preferred this First Appeal u/S.19 of Family Courts Act, assailing the order dtd. 24/07/2015 passed by Principal Judge, Family Court Morena in Case No.20/2014 (HMA) rejecting the application filed by her under Order 9 Rule 13 r/w Sec. 151 CPC, seeking setting aside of ex parte judgment and decree dtd. 16/03/2011 passed by Third Additional District Judge, Morena in Case No.03/2010 (HMA).

(2.) It is not in dispute that the appellant is the legally-wedded wife of the respondent. Their marriage was solemnized as per the Hindu rights and rituals in 1970 and they were having two sons and two daughters. Presently, the appellant is living separately from her husband/respondent.

(3.) It is the case of respondent that he had filed a divorce petition u/S. 13-A of the Hindu Marriage Act, 1955 [in short " HMA"] before Third Additional District Judge, Morena on 11/01/2010 and in absence of appellant/wife as well as her counsel, an ex parte judgment and decree was passed in favour of respondent/husband on 16/03/2011 and the marriage between the parties was dissolved. Being aggrieved by the same, appellant/wife filed a restoration application under Order 9 Rule 13 r/w Sec.151 CPC for setting aside of ex parte judgment and decree dtd. 16/03/2011, on the ground that her advocate Shri Vishnu Kumar Maheshwari had assured her that she is not required to come to the Court on each date and he will call her as and when required. During pendency of the case, the wife of her Advocate Shri Vishnu Maheshwari, suffered from cancer due to which, her Advocate Shri Maheshwari had to remain out of Morena for the purpose of treatment of his wife. After the death of wife of her Advocate Shri Vishnu Maheshwari, when she came to her Advocate's Office, she came to know that an ex parte judgment and decree has been passed in favour of the respondent on 16/03/2011. In support of application filed under Order 9 Rule 13 r/w Sec.151 CPC before the Family Court, the appellant filed an affidavit of Ramprakash Sharma, Stamp Vendor under Order 18 Rule 4 CPC.