Allowed

Rakhi Walia v. Chaksh Deep Sood

Himachal Pradesh HC9 Jul 2024FAO(FC)/5/2024

Case brief

AI extract

What is this about?

Appeal against a Family Court decree of divorce granted ex parte after dismissing as infructuous the wife's application under Order 9 Rule 7 CPC. The High Court held the Family Court erred in deciding the main petition first, set aside both orders, allowed the application, and remanded the matter.

What did the court decide?

Impugned Family Court judgment dated 30.11.2023 set aside; matter remitted; Order 9 Rule 7 application allowed; parties to appear on 21.08.2024.

Rakhi Walia Vs Chaksh Deep Sood — Matrimonial and Divorce | Himachal Pradesh HC (2024)

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2024:HHC:4766

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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FAO(FC) No.5 of 2024 Decided on: 09.07.2024

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Rakhi Walia ...Appellant Versus Chaksh Deep Sood ...Respondent

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Coram

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The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice The Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting?

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For the appellant:	Mr. H.S.Rangra, Advocate.
For the respondent:	Mr. Nitin Thakur and Mr. Udit Shaurya Kaushik, Advocates.

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M.S. Ramachandra Rao, Chief Justice (Oral)

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This appeal is preferred against the order dt. 30.11.2023 passed by the Principal Judge, Family Court, Kangra at Dharamshala, District Kangra, H.P. in HMA no.132-D/III/19/2016.

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The appellant herein was the respondent in the said case before the said Court.

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The said case had been filed by the respondent herein against the appellant for dissolution of their marriage under Section

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13(1)(i-a) of the Hindu Marriage Act, 1995.

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The appellant had filed her reply and had also engaged a counsel.

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It appears that on 20.10.2023, neither the appellant nor

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her counsel appeared before the Family Court as there was error on the part of the counsel in noting down the said date of hearing. On account of absence of the appellant, the Family Court passed an order making the appellant ex parte.

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6 . On the very next date, an application under Order 9 Rule 7 CPC was filed to set aside the said order dt. 20.10.2023 making the appellant ex parte .

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Sadly, the Court continued to adjourn the said application, passed final orders on 30.11.2023 in the main petition for dissolution of marriage, and passed a docket order on 30.11.2023 on the same date in the said application under Order 9 Rule 7 CPC stating that application under Order 9 Rule 7 CPC has become “infructuous”.

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Counsel for the appellant contends that it was the duty of the Family Court to consider the application under Order 9 Rule 7, recall its previous order passed on 20.10.2023 making the appellant ex parte , grant liberty to the appellant to fully contest the petition and then to decide it, but the Family Court failed to do so.

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Though, counsel for the respondent supports the decision of the Family Court, we agree with the submission of

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counsel for the appellant that the Family Court was duty bound to decide the application under Order 9 Rule 7 CPC since it was filed the very next day after it had passed an order making the appellant ex parte.

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10 . It was not proper on the part of the Family Court to adjourn the application under Order 9 Rule 7 CPC, list it along with the main petition, decide the main petition first and then dismiss the application under Order 9 Rule 7 CPC as infructuous. We strongly deprecate this conduct on the part of the Family Court.

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In our considered opinion, the appellant has been denied a valuable right to contest the proceedings initiated against her by the respondent and there has been grave prejudice caused to the appellant.

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Therefore, the impugned judgment dt. 30.11.2023 in HMA no.132-D/III/19/2016 of the Family Court is set aside; matter is remitted back to the Family Court; order dt. 30.11.2023 passed by the Family Court under Order 9 Rule 7 CPC is also set aside; the said application is allowed and the Family Court is directed to proceed from that stage, give opportunity to both sides, and then decide the petition, in accordance with law. No costs.

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Both parties shall appear before the Family Court on

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21^st August, 2024.

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Pending application(s) if any, shall also stand disposed

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of.

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( M.S. Ramachandra Rao ) Chief Justice

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( Satyen Vaidya ) Judge

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July 09, 2024

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(vt)

Rakhi Walia v. Chaksh Deep Sood

Case brief

What is this about?

What did the court decide?

Rakhi Walia v. Chaksh Deep Sood

Case brief

What is this about?

What did the court decide?

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