- (1.)The husband has preferred this Revision Petition by challenging the correctness and legality of an order passed by the Family Court Gwalior, in Civil M.J.C. No. 05/2007 on date 16-10-2007 whereby the application preferred by the wife, under Order 9, Rule 13 of the Civil Procedure Code, seeking setting aside of an ex parte decree of divorce, has been allowed, on the ground that technical attitude should not be adopted in a matrimonial dispute, while entertaining an application under Order 9, Rule 13 of Civil Procedure Code.
(2.)Smt. Manju Ratnakar and Sohanlal Ratnakar are the married couple and husband Sohanlal had submitted an application seeking divorce from his wife, which was registered as Case No. 309-A/05, and the notice was issued to the wife, which allegedly was served upon her and on account of her absence in the proceedings, an order was passed for proceeding ex parte against the wife and later on an ex parte decree of divorce was drawn by the Family Court in favour of the husband on date 1-3-2006. Soon upon receiving the intimation of the passing of the ex parte decree, from her own mother-in-law, the wife had obtained a certified copy of the judgment and decree and had approached the Family Court by preferring an application under Order 9, Rule 13 of Civil Procedure Code along with an application under section 5 of the Indian Limitation Act.
(3.)The Family Court had permitted the parties to adduce evidence on the application preferred under Order 9, Rule 13 of Civil Procedure Code. The husband has examined the Process Server, who initially deposed that he knows the wife and has effected the service upon her, however during cross-examination, he failed to establish the identity of the wife, which created a doubt in the mind of the Family Court, however on account of the marking of signature of wife, on the process report, the Court found that notice of divorce Petition was properly served upon the wife. The Family Court further found that the wife had approached the Family Court with utmost bona fides and looking to the reasons assigned in the application seeking condonation, the delay in preferring the application was condoned. The Family Court had further opined that in a matrimonial dispute, no technical attitude should be adopted, while entertaining an application preferred under Order 9, Rule 13 of Civil Procedure Code, as these provisions should be utilized liberally and in view of the principle of natural justice, both the parties should be afforded an adequate opportunity of hearing. The Family Court has ordered for setting aside the ex parte decree of divorce by the impugned order passed on date 16-10-2007, which has been challenged by the husband before this Court through this Civil Revision.