#Exparte #divorce against wife affirmed as she did NOT #respond #EVEN #after receiving #notice

Husband marries a woman thinking she is not married earlier. Some years into the relationship strains develop in the relationship. One fine day husband comes to know that wife is already married and has a kid from the earlier marriage. He files for divorce before the Learned Principal Judge, Family Court, Palamau at Daltonganj. Wife receives notice and replies in writing seeking time to transfer case to her own hometown, but for some reason such transfer order is never obtained by her. Neither does she appear for the case. Husband wins exparte divorce, which wife appeals at HC. HC affirms the exparte decree as the wife’s fault of non appearance etc come out clearly

 

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

First Appeal No. 187 of 2010

Smt. Sheela Devi …. … Appellant

Versus

Dr. Braj Bhushan Singh … … Respondent


CORAM : HON’BLE MR. JUSTICE H. C. MISHRA

HON’BLE MR. JUSTICE Dr. S.N. PATHAK


For the Appellant : Mrs. Pratyush Kumar, Advocate
For the Respondent : Mr.S.K. Murari, Advocate.


 

09/ 28.03.2017
1. Heard the learned counsel for the appellant and learned counsel for the respondent.

  1. The appellant wife is aggrieved by the ex-parte decree of divorce passed against her, by Judgment and Decree dated 22.05.2010, by the Learned Principal Judge, Family Court, Palamau at Daltonganj, in Matrimonical Case No. 28 of 2009.
  2. It may be stated that this appeal also was filed after inordinate delay of 101 days, which was condoned by order dated 13.05.2011 passed in I.A No. 3700 of 2010.

  3. The petitioner respondent had brought the suit of the decree of divorce stating that he was practicing medicine in Homeopathy and his first wife had died on 14.09.2005 due to cancer. Thereafter, he wanted to marry an unmarried lady and the father of the appellant approached him stating that his daughter was unmarried and of a good behaviour, and believing this the marriage between the parties was solemnized on 14.06.2008 at a Temple in Patna City, Patna. Thereafter both the parties came to Daltonganj where the husband was practicing medicine in Homeopathy, and started living together as husband and wife. It is alleged that after sometime the wife started pressuring the husband to transfer his entire property in her name, which was ignored by the petitioner respondent, whereupon she started subjecting him to cruelty and torture. She also used to lock his chamber, where the husband was practicing. Thereafter, the petitioner-respondent brought his wife to his in-laws’ place, where his father-in- law asked him to leave his wife at his house for sometime and he will try to correct her behaviour. On 15.08.2008 for the first time the father-in-law of the petitioner husband informed him that his wife was already married earlier and she had female child from her earlier husband and he had to maintain the female child also. The petitioner husband was shocked to hear this and he was not ready for the same. On 09.08.2009 the wife came to the residence of the petitioner respondent at Daltonganj along with a female child aged about two and half years and thereafter she started committing physical and mental torture upon the petitioner respondent in various ways. She had also tried to commit suicide by pouring Kerosene Oil on herself in the presence of his patients, but with the help of his patients she could be prevented from committing suicide. She also used to subject the petitioner respondent to cruelty in various ways making the life of the petitioner respondent miserable, which forced the petitioner-respondent to file the suit for dissolution of marriage between the parties by a decree of divorce in the Court below.

  4. The impugned Judgment shows that registered notice was issued to the opposite party appellant by the Court below, which was also validly served upon her on 12.12.2009. Thereafter, she also wrote a letter to the Court below acknowledging the receipt of the notice, and stating that she intended to move the High Court for transfer of the case from Daltonganj to Jamshedpur, where she was living with her parents, but that was also not done by her and no order of transfer was received in the Court below. Ultimately by order dated 30.03.2010 the case was fixed for ex-parte proceeding.

  5. It appears from the impugned Judgment that four witnesses were examined by the petitioner in the Court below, including himself, and the witnesses proved the case of cruelty and mental cruelty upon the petitioner respondent. The appellant did not appear in the Court below even for cross- examining those witnesses, and ultimately, by the ex-parte Judgment and Decree dated 22.05.2010, the marriage between the parties was dissolved by the Court below, giving permanent alimony of Rs. 1,00,000/- to the wife.

  6. Learned counsel for the appellant has submitted that the impugned Judgment passed by the Court below cannot be sustained in the eyes of law, inasmuch as, no family member of the petitioner-respondent was examined in the Court below, rather only non-family member witnesses were examined, who had only supported the case of the petitioner-respondent. Learned counsel submitted that in any event the permanent alimony granted to her is at a very lower side.

  7. Learned counsel for the respondent on the other hand has opposed the prayer and submitted that in spite of receiving notice, the appellant did not appear in the Court below, even though she had acknowledged by writing a letter to the Court below that she had received the notice. After giving sufficient opportunity to the appellant the matter was fixed for ex-parte proceeding and after examining witnesses of the petitioner respondent, who proved the case of cruelty and mental cruelty upon the petitioner by the opposite-party-wife, the marriage between the parties was dissolved by the decree of divorce. Learned counsel submitted that there is no illegality in the impugned Judgment and Decree and even the present appeal was filed after an inordinate delay of 101 days.

  8. Having heard learned counsels for both the parties and upon going through the record, we find no valid reason for setting aside the ex-parte decree. It is an admitted position that the notice issued to the appellant was validly served upon her and she had also written a letter to the Court below acknowledging the same and seeking time for bringing the order for transfer of the case. No application for transfer of the case was filed by the appellant-wife in the High Court, and after waiting for sufficient period the case was fixed for ex-parte proceeding. The petitioner respondent examined four witnesses, including himself, to prove the case of the cruelty and mental cruelty by the appellant and accordingly, the suit was decreed on the basis of the evidence on record. We do not find any illegality in the impugned Judgment, nor any valid reason for setting aside the ex-parte Judgment and Decree, dissolving the marriage between the parties by a decree of divorce.

  9. So far as the submission of the learned counsel for the appellant that the permanent alimony granted to the appellant is of the lower side, we are of the considered view that for enhancement of the amount of permanent alimony it is always open to the appellant wife to move the competent Court and to prove her case for any such enhancement under Section 25 of the Hindu Marriage Act.

  10. We do not find any merit in this appeal and the same is accordingly, dismissed.

( H. C. Mishra, J.) (Dr. S.N. Pathak, J.) P.K.S./Anjali

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