RAJKUMARI KHANDELWAL Vs. MANOJ KHANDELWAL AND ORS.

JUDGEMENT

(1.) The instant misc. appeal under Sec. 19 of the Family Courts Act, 1984 has been filed against order of the learned Family Court No. 2, Jaipur dated 05.01.2015, dismissing the application filed by the appellant under Order 9 Rule 13 CPC for restoration of Application No. 184/2012, filed under Sec. 13 -B of the Hindu Marriage Act, 1955 (in short, 'the Act').

(2.) Brief facts of the case in nutshell for our consideration are that marriage of the appellant and respondent was solemnized on 11.02.2005 as per Hindu rites and customs and from this wedlock, a male child was born on 16.12.2006. The plea of the appellant is that because of their strained relations, the estranger respondent -husband of the appellant filed an application seeking divorce under Sec. 13 of the Act before the District & Sessions Judge, Alwar on 09.09.2008. At the same time, a joint application came to be filed by the spouse under Sec. 13 -B of the Act on 31.03.2012. It may be noticed that the application earlier filed by the respondent -husband under Sec. 13 of the Act was dismissed as not pressed on 03.05.2012. On 04.05.2012, the statements of the spouse were recorded and the Presiding Officer after recording his satisfaction, granted a decree for divorce by consent under Sec. 13B of the Act vide judgment & decree dated 04.05.2012. That judgment came to be challenged by the present appellant by filing S.B. Civil Misc. Appeal No. 1249/2013 and with the consent of the parties, vide order dated 23.09.2013 the impugned judgment and decree dated 04.05.2012 was set aside and the matter was remitted back to the learned Family Court, obviously to decide their joint application filed under Sec. 13 -B of the Act on merits, after adopting the procedure prescribed by law.

(3.) It may also be noticed that a transfer petition also came to be filed by the present appellant and on her request, the matter was transferred from the District Judge, Alwar to Family Court, Jaipur. In compliance of the order of this Court dated 23.09.2013 passed in S.B. Civil Misc. Appeal No. 1249/2013, the matter was remitted back to the learned Family Court. In reveals from the record that since the appellant failed to record her presence on various dates, obviously the application under Sec. 13 -B of the Act could not be decided in absence of the parties and taking note thereof, the joint application filed by the spouse under Sec. 13 -B of the Act on account of non -appearance of the present appellant came to be rejected vide order dated 10.11.2014. At that stage, the present appellant filed an application for setting the order dated 10.11.2014 and to restore their joint application (No. 184/2012) filed under Sec. 13 -B of the Act. We find that there was no opposition made by the respondent -husband, but after taking into consideration the material on record, the learned Family Court dismissed her application for restoration of Application No. 184/2012 vide order dated 05.01.2015 and which is the subject matter of challenge in the instant misc. appeal.