TRIDEV CHATURVEDI Vs. MANJARI ALIAS JOOLI CHATURVEDI

JUDGEMENT

(1.) This first appeal has been preferred under Section 19(1) of the Family Court Act, 1984 being aggrieved by the order dated 3.8.2011 passed by the Additional Principal Judge, Family Court, Gwalior, in MJC No.4/11, whereby ex-parte decree for divorce granted in HMA Case No.261- A/2009 has been set aside.

(2.) The brief facts giving rise to this appeal are that appellant- husband has filed a petition under Sections 12 and 13 of the Hindu Marriage Act for declaring the marriage solemnized on 13.12.06 to be void and in the alternative for divorce before the Additional District Judge, Datia. The respondent got the matter transferred to the Family Court, Gwalior. After submission of written statement, the learned Additional Principal Judge fixed the matter for appellant's evidence on 13.9.10, 12.10.10, 19.11.10, 26.11.10 and 10.12.10. On 10-12-2010 the appellant and his witnesses were present for cross-examination, but respondent and her counsel were not present, therefore, the learned Additional Principal Judge proceeded ex-parte against the respondent- wife and after hearing the arguments, fixed the case for judgment on 13.12.10. The respondent appeared at 2.50 p.m. on 10.12.10 and signed the order- sheet. On 13.12.10, the judgment was pronounced and the petition of the appellant was allowed.

(3.) The respondent- wife preferred an application under Order 9 Rule 13 CPC on the ground that the petition was preferred by the appellant- husband for granting divorce and the matter was fixed for 26.11.10. The respondent- wife was not present on 26.11.10 before the Court and her counsel has informed regarding the proceeding of the Court. On 10.12.10 at about 12 p.m. respondent received a telephonic message that case is fixed today and was asked to attend the Court.