RAJESH KUMAR Vs. INDU DEVI

JUDGEMENT

(1.) This First Appeal has been preferred against the order passed by the learned Principal Judge, Family Court, Ranchi in Misc. Case No. 57 of 2009 dated 17th October, 2012, whereby an application preferred by the respondent for quashing and setting aside ex-prate decree, passed by the learned Principal Judge, Family Court, Ranchi dated 24th August, 2007, was allowed, without there being any application for condoning the delay, preferred by the respondent and without condoning the delay of two years. This is an error apparent on the face of the record which is pointed out by the counsel for the appellant for allowing this First Appeal. It is also submitted by the counsel for the appellant that after the order passed by the learned Principal Judge, Family Court, Ranchi in Matrimonial Title Suit No. 218 of 2006 dated 24th August, 2007, in fact, after 17 months thereafter, this appellant has remarried with another fair lady. Moreover, it is also submitted by the counsel for the appellant that the judgment and decree passed by the learned Principal Judge Family Court, Ranchi in Matrimonial Title Suit No. 218 of 2006 was never ex-parte, because at the relevant time service of notice was already executed upon the respondent-wife and there was a paper publication notice also, but, the respondent-wife did not appear before the learned Principal Judge, Family Court, Ranchi. Thus, if any party after service of the notice by the competent trial Court, is avoiding his/her presence in the Court and if a decree is passed by the trial Court, it cannot be said that it was an ex-parte decree. Learned counsel appearing for the appellant has also argued out the case, on merits, and submitted that without any delay condonation application, preferred by the respondent-wife, which was of approximately two years, her application for quashing and setting aside the so called ex-parte decree was allowed by the trial Court and hence, this First Appeal has been preferred by the original respondent in Misc. Case No. 57 of 2009.

(2.) Learned counsel appearing for the respondent submitted that, in fact, in a divorce application preferred by this appellant in M.T.S. No. 218 of 2006, ex-parte decree was passed by the learned Principal Judge, Family Court, Ranchi on 24th August, 2007. This fact was pointed out by the respondent-wife in Misc. Case No. 57 of 2009 and hence, the said ex-parte decree has been quashed and set aside by the learned Principal Judge, Family Court, Ranchi vide order dated 17th October, 2012 and thus, no error has been committed by the learned Principal Judge, Family Court, Ranchi in quashing and setting aside the ex-parte decree passed in M.T.S. No. 218 of 2006 dated 24th August, 2007. Hence, this First Appeal should not be entertained by this Court. It is also submitted by the counsel for the respondent that in Maintenance Suit No. 115 of 2003, an order was passed in the year 2006 to make payment of Rs. 3000/- per month as interim maintenance and the final order has also been passed in the year, 2011, against which an appeal has been preferred by this appellant before the Patna High Court which has also been dismissed and despite this fact, this appellant has not paid the amount towards maintenance.

(3.) Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that the marriage between the appellant and respondent was solemnized on 19.5.1997 according to Hindu Rites and Custom. There are also allegations that both the parties are residing separately since 19.02.1998. It appears that thereafter, Matrimonial Title Suit No. 47 of 2000 was preferred by this appellant for restitution of conjugal rights before the Family Court, Ranchi and in matching thereto, respondent-wife preferred a suit for divorce being M.T.S. No.195 of 2001 in the Court of learned Principal Judge Family Court, Patna.