Case Note & Summary
The appellant husband filed a divorce petition under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, on the ground of cruelty. The Family Court at Pune passed an ex parte decree of divorce on 6th March 2012, dissolving the marriage solemnized on 12th December 1994, and granting the husband access to their son. The wife filed an application under Order 9 Rule 13 CPC to set aside the ex parte decree. The Family Court allowed the application on 24th October 2013, setting aside the decree and restoring the petition. The husband appealed, contending that he was not given an adequate opportunity to be heard on the application. The High Court observed that the husband had filed his say but the trial court did not hear him at length. To remedy this, the High Court set aside the order dated 24th October 2013 and remanded the matter to the Family Court for fresh hearing and disposal of the application under Order 9 Rule 13 CPC, after giving both parties an opportunity to be heard. The appeal was allowed.
Headnote
A) Civil Procedure - Setting Aside Ex Parte Decree - Order 9 Rule 13 Code of Civil Procedure, 1908 - Opportunity of Hearing - The Family Court set aside an ex parte divorce decree without affording the husband a proper opportunity to be heard on the application under Order 9 Rule 13 CPC - The High Court held that the husband was not given a full hearing and remanded the matter for fresh consideration after hearing both parties (Paras 4-5).
Issue of Consideration
Whether the Family Court was justified in setting aside the ex parte divorce decree without giving adequate opportunity of hearing to the husband.
Final Decision
The High Court allowed the appeal, set aside the order dated 24th October 2013 passed by the Family Court, and remanded the matter to the Family Court for fresh hearing and disposal of the application under Order 9 Rule 13 CPC, after giving both parties an opportunity to be heard.
Law Points
- Order 9 Rule 13 CPC
- Section 13(1)(i-a) Hindu Marriage Act
- 1955
- Ex parte decree
- Setting aside ex parte decree
- Opportunity of hearing
- Natural justice
Case Details
2014 LawText (BOM) (08) 77
Family Court Appeal No.59 of 2014
Smt. V.K. Tahilramani, A.S. Gadkari
Mr. Pradeep Lamba for the Appellant, Mr. Mandar Soman for the Respondent
Group Captain Nitin Kanitkar (Retd.)
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Nature of Litigation
Family Court Appeal against order setting aside ex parte divorce decree.
Remedy Sought
Appellant husband sought to challenge the order dated 24th October 2013 allowing wife's application under Order 9 Rule 13 CPC to set aside ex parte divorce decree.
Filing Reason
Appellant contended that he was not given adequate opportunity of hearing before the Family Court allowed the application to set aside the ex parte decree.
Previous Decisions
Family Court at Pune passed ex parte divorce decree on 6th March 2012 in Petition No.A-801 of 2011. Wife filed Civil Miscellaneous Application No.9 of 2013 under Order 9 Rule 13 CPC to set aside the ex parte decree. Family Court allowed the application on 24th October 2013.
Issues
Whether the Family Court erred in setting aside the ex parte divorce decree without giving proper hearing to the husband.
Submissions/Arguments
Appellant husband argued that after filing his say to the application under Order 9 Rule 13 CPC, the trial court did not give him an opportunity of hearing at length and proceeded to pass the order.
Ratio Decidendi
An order setting aside an ex parte decree under Order 9 Rule 13 CPC must be passed after giving both parties a proper opportunity of hearing; failure to do so vitiates the order.
Judgment Excerpts
With a view to overcome with the said grievance, we accorded an opportunity of hearing to both the parties and after hearing them, we are of the opinion that the impugned order dated 24th October 2013 deserves to be set aside and the matter is required to be remanded back to the Family Court for fresh hearing and disposal of the application under Order 9 Rule 13 of the Code of Civil Procedure.
Procedural History
Husband filed divorce petition (Petition No.A-801 of 2011) under Section 13(1)(i-a) of Hindu Marriage Act, 1955. Family Court passed ex parte decree on 6th March 2012. Wife filed application under Order 9 Rule 13 CPC (Civil Miscellaneous Application No.9 of 2013) to set aside ex parte decree. Family Court allowed the application on 24th October 2013. Husband appealed to High Court (Family Court Appeal No.59 of 2014).
Acts & Sections
- Code of Civil Procedure, 1908: Order 9 Rule 13
- Hindu Marriage Act, 1955: Section 13(1)(i-a)
