Mamtarani v. Ravinder

dated 02.01.2014 passed in HMA No.405/2013 passed by the Principal Judge, Family Courts, Patiala House Courts, New Delhi.
On the last date of hearing, we had given a direction for the personal presence of both the parties. In compliance of the said direction, both the parties are personally present in Court.
2015:DHC:11715-DB Considering the fact that a decree has been passed in favour of the respondent under Section 9 of the Hindu Marriage Act, therefore, we thought it fit to ascertain the views of both the parties as to whether they are agreeable to live together. The respondent-husband has shown his clear disinclination to take the appellant back to the matrimonial home. On the other hand, the appellant-wife has shown her willingness to join back the company ofher husband (respondentherein).
In order to take a firm view on their respective stands, this Court had given an opportunity to both the parties to sit across and try to reach an amicable solution so that they can apprise the Court with their exact stands.
Parties were also allowed to sit in the Mediation and Conciliation Centre of this Court in this regard for about half an hour. Now, the matter has been taken up again but with no variation in their respective stands. The respondent has maintained the position that he is not willing to take back the appellant to stay with him at the matrimonial home, while the appellant also maintains her stand that she is willing to live with her husband, the respondent herein.
Taking into consideration the said stands ofboth the parties, it is quite evident that reconciliation between the parties is not possible. Final arguments in this matter have been heard. Mr.AtuI T.N., counsel for the appellant submits that the respondent in his petition has levelled serious allegations againstthe appellant and, therefore, a chance maybe given to the appellant to contest the petition filed by the respondent on its merits.
Counsel also submits that the appellant had received the summons from the
Family Court in Section 9 proceedings for 16.09.2013, but she never appeared before the Family Court. Coimsel further submits that the appellant had engaged Mr.Om Karan Sharma, Advocate and the said
Advocate had given assurance to her that he would take care ofher case and she need not appear in the case. Submission of counsel for the appellant is that it is only in this background of the facts that the appellant never presented herself before the Family Court andwas ultimately proceeded ex parte and subsequently ex parte decree waspassed against her.
Counsel for the respondent, on the other hand, submits that the appellant has taken a false stand in her application before the Family Court and also before this Court, as the counsel Mr.Om Karan Sharma had not been attending to his chamber at Patiala House Courts for more than two years. Moreover, he had already surrendered his chamber at Patiala House
Courts and was allotted another chamber at Dwarka Courts. Counsel thus l*.
I states that the appellant had never engaged Mr.Om Karan Sharma to represent her in the said case and in a most clever manner the appellant has used the name of the said Advocate after having leamt about his death.
Counsel also submits that in Domestic Violence Act proceedings the appellant had been continuously appearing in the Court and as such nobody prevented or stopped her to appear in Section 9 proceedings before the
Family Court.
We have heard the learned counsel for the parties and perused the records.
We would not like to give any direction for a fresh decision on the application under Order 9 Rule 13 CPC after evidence is led by both the parties as such a process would unnecessarily cause undue delay in the matter. In the facts of this case, a decree under Section 9 of the Hindu
Marriage Act has been passed in favour of the respondent and against the appellant-wife. However, as per the stand taken by the respondent before this Court, he is not agreeable to take his wife back to the matrimonial home and, therefore, the respondent is no more agreeable to take back the appellant. In this background of the facts, without touching the merits and de-merits of the contentions raised by both the parties, we set aside the impugned order dated 09.02.2015 and exparte decree dated 02.01.2014 both passed by the Principal Judge, Family Courts, New Delhi and direct the learned Family Courtto adjudicate upon the said petition on its merits. We also direct the appellant to file her writtenstatement within a period of two weeks fi*om the date of listingofthe matterbefore the Family Court. Parties shall appear before the Principal Judge, Family Court on 18.05.2015. We request the learned Family Judge to decide the Section 9 petition within a
•-P periodofsix months thereafter. Wealso impose a nominal cost ofRs.5,000/- on the appellant for her negligent conduct in not prosecuting the said matter diligently. The said cost shall be deposited by the appellant with the Delhi
High Court Staff Welfare Fund within a period of four weeks. Affidavit of compliance shall be filed by the appellant before the learned Family Court.
With the above directions,the present appeal is disposed of.
KAILASITGAMBfflR, J :S. MEHTA, J APRIL 29,2015
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