JAYESH THAKUR Vs. ANJU BHATTA

JUDGEMENT

(1.) RESPONDENT Smt. Anju Bhatta, wife of appellant Jayesh Thakur filed an application under Section 13(1)(a) of the Hindu Marriage Act seeking divorce. The ground for divorce was cruelty. Notice on the application was issued to the appellant. Notice was received by the appellant but he did not appear to contest the case. The appellant appeared on 11 -9 -1995 and filed a petition for time. The case was adjourned to 4 -11 -1995. On that date, i.e. 4 -11 -1995 the respondent was present. The appellant was absent. The appellant had filed an application for recalling of the order of listing the case for ex parte hearing. The petition was not moved and no order was passed on the application, the case was adjourned to 5 -12 -1995 for ex parte hearing. On 5 -12 -1995 also the appellate was absent. Counsel did not move the application filed earlier for recall of order of ex parte hearing. On 3 -2 -1996 the Court concerned fixed the case for ex parte hearing on 11 -3 -1996. On 20 -4 -1996 the case was taken up for hearing in absence of the appellant. The witnesses were examined on the said date. On 4 -5 -1996 also another set of witnesses were examined. The appellant was not present. On 7 -10 -1996 the appellant filed an application to the effect that he could not appear due to illness. The appellant prayed for acceptance of their written statement.

(2.) THE learned Judge on hearing the parties and by a reasoned order held that the appellant Jayesh Thakar was deliberately avoiding to appear in the case. The learned Judge ordered that the case shall proceed on 3 -12 -1996, a petition was filed on behalf of the appellant to the effect that he may be permitted to cross -examine the witnesses adduced on behalf of the respondent. The learned Judge did not find any merit in the application and accordingly rejected it and on the same day delivered the judgment in favour of the respondent. The Judge passed the decree of divorce.

(3.) SHRI Kalyan Roy, learned Counsel for the appellants submitted that since the appellant had appeared and filed an application for recalling of order of ex parte hearing. It was incumbent upon the Family Court Judge to try reconciliation. Section 9 of the Family Courts Act is part materia with Section 23(2) of the Hindu Marriage Act. Section 9 of the Family Courts Act reads as follows: 9. Duty of Family Court to make efforts for settlement -(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject -matter of the suit or proceeding and for this purpose a Family Court may subject to any rules made by the High Court following such procedure as it: may deem fit.