Case Note & Summary
The petitioner-husband, Eknath, filed a civil revision petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) challenging an order dated 12/03/2015 passed by the Family Court, Belagavi, in Civil Misc. No.2 of 2013. The Family Court had allowed an application filed by the respondent-wife, Roopa, under Order IX Rule 13 read with Section 151 CPC, setting aside an exparte judgment and decree dated 14/06/2012 passed in M.C.No.58 of 2012, which had granted divorce to the husband. The husband contended that in view of Section 19 of the Family Courts Act, 1984, which provides for appeals against orders of the Family Court, no application under Order IX Rule 13 CPC is maintainable for restoration of a disposed petition. He further argued that after obtaining the divorce decree, he had re-married, and therefore the question of restoration did not arise. The respondent-wife submitted that the Family Court had found that the notice issued to her was not properly served, and therefore the exparte decree was set aside to provide her an opportunity to contest the proceedings. The High Court examined the provisions of the Family Courts Act and CPC. It noted that Section 19 of the Family Courts Act provides for appeals, but does not expressly exclude the application of CPC provisions. The Court held that Order IX Rule 13 CPC is a procedural provision that allows a party to seek setting aside of an exparte decree, and such a remedy is not barred by the Family Courts Act. The Court dismissed the revision petition, upholding the Family Court's order.
Headnote
A) Family Law - Exparte Decree - Setting Aside - Maintainability - Order IX Rule 13 read with Section 151 of Code of Civil Procedure, 1908 - Section 19 of Family Courts Act, 1984 - The petitioner-husband challenged the order of the Family Court allowing the wife's application under Order IX Rule 13 CPC to set aside an exparte divorce decree. The husband contended that Section 19 of the Family Courts Act provides only for appeals and not for restoration. The Court held that the Family Courts Act does not exclude the application of CPC provisions, and Order IX Rule 13 is available to set aside exparte decrees. The revision petition was dismissed. (Paras 1-8)
B) Family Law - Re-marriage - Effect on Setting Aside Exparte Decree - The husband argued that since he had re-married after the exparte divorce decree, restoration of the petition would not arise. The Court did not address this contention as it was not relevant to the maintainability issue. (Para 3)
Issue of Consideration
Whether an application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 is maintainable before a Family Court to set aside an exparte decree, in view of Section 19 of the Family Courts Act, 1984 which provides for appeals.
Final Decision
The High Court dismissed the civil revision petition, upholding the order of the Family Court dated 12/03/2015 allowing the application under Order IX Rule 13 read with Section 151 CPC to set aside the exparte decree.
Law Points
- Family Courts Act
- 1984
- Section 19
- Code of Civil Procedure
- 1908
- Order IX Rule 13
- Section 151
- maintainability of application to set aside exparte decree
- applicability of CPC to Family Courts
Case Details
2015 LawText (KAR) (09) 10
Civil Revision Petition No.100031 of 2015
S.S. Yadrami (for petitioner), Pavan B. Doddatti (for respondent)
Eknath S/o Pandurang Masti
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Nature of Litigation
Civil revision petition against order of Family Court allowing application under Order IX Rule 13 CPC to set aside exparte divorce decree.
Remedy Sought
Petitioner-husband sought to set aside the Family Court order dated 12/03/2015 allowing the wife's application to set aside exparte decree.
Filing Reason
Petitioner contended that application under Order IX Rule 13 CPC is not maintainable before Family Court in view of Section 19 of Family Courts Act.
Previous Decisions
Family Court, Belagavi, passed exparte judgment and decree dated 14/06/2012 in M.C.No.58/2012 granting divorce to husband. Wife filed application under Order IX Rule 13 CPC which was allowed on 12/03/2015, setting aside the exparte decree.
Issues
Whether an application under Order IX Rule 13 read with Section 151 CPC is maintainable before a Family Court to set aside an exparte decree, in view of Section 19 of the Family Courts Act, 1984?
Submissions/Arguments
Petitioner-husband argued that Section 19 of Family Courts Act provides only for appeals, and no provision for restoration under Order IX Rule 13 CPC is available. He also contended that after obtaining divorce decree, he has re-married, so restoration does not arise.
Respondent-wife argued that Family Court found notice was not properly served, and setting aside exparte decree was to provide opportunity to contest.
Ratio Decidendi
The Family Courts Act, 1984 does not exclude the application of the Code of Civil Procedure, 1908. Order IX Rule 13 CPC is a procedural remedy available to a party to seek setting aside of an exparte decree, and such an application is maintainable before a Family Court despite the availability of an appeal under Section 19 of the Family Courts Act.
Judgment Excerpts
The petitioner-husband has approached this Court calling in question the order passed by the Family Court, Belagavi, in Civil Misc. No.2 of 2013 dated 12/03/2015 wherein the Family Court has allowed the petition filed under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure by setting aside its earlier exparte judgment and decree dated 14/06/2012 passed in M.C.No.58 of 2012.
Sri. S.S. Yadrami, learned counsel for the petitioner strenuously contends before the Court that in view of Section 19 of the Family Courts Act, any order on facts or law passed by the Family Court is appealable and no other provision is made for invoking the provisions under the Code of Civil Procedure under Order IX Rule 13 for restoration of petition already disposed of by the Family Court.
Procedural History
The Family Court, Belagavi, passed an exparte judgment and decree dated 14/06/2012 in M.C.No.58/2012 granting divorce to the husband. The wife filed an application under Order IX Rule 13 read with Section 151 CPC in Civil Misc. No.2/2013 to set aside the exparte decree. The Family Court allowed that application on 12/03/2015. The husband filed the present civil revision petition under Section 115 CPC before the High Court of Karnataka, Dharwad Bench, challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908: Section 115, Order IX Rule 13, Section 151
- Family Courts Act, 1984: Section 19
