Uttaranchal High Court: While dismissing the instant appeal against the order dated 25-08-2022 passed by Family Court whereby the wife’s application was allowed to set aside the ex-parte divorce decree obtained by the appellant, Vipin Sanghi, CJ and Ramesh Chandra Khulbe, J., said that if the husband had to obtain divorce, he should have fairly and squarely separated from his wife before filing the divorce petition, and he should not have been living with her.
Facts:
During the pendency of the divorce proceedings, the respondent did not inform the Court about the change of address. Thus, it was deemed that she continued to reside with the appellant.
The respondent was summoned but did not appear to contest the divorce proceedings. Hence, ex-parte divorce decree was passed on 30-10-2021 by the Family Court.
Respondent informed that the conduct of the appellant in relation to other woman gave rise to a controversy between the parties and, at that stage, the appellant disclosed to the respondent that he had already obtained a decree of divorce against her. Thereafter, she moved the two applications on 23-05-2022, under Section 5 of the Limitation Act, 1963 to seek condonation of delay in moving the second application under Order 9 Rule 13 Code of Civil Procedure and the other, to seek the setting aside of the ex-parte decree of divorce.
The Family Court observed that there is a strong possibility that the said post was sent by the husband himself and has been received by him only, and the wife does not have any information regarding the said registered post, because no copy of the acceptance of the said registered post has been received on record, which should show that the said registered post has been received by the applicant.
Observation and Analysis:
The Court observed that the appellant, while filing the divorce petition provided the same address for both himself and his wife, making it clear that the petition was preferred by the appellant while living with the respondent as her husband.
The Court said that the husband has gravely undermined the institution of marriage which is sacrosanct amongst the Hindus – the religion to which the parties belong.
The Court further said that if the appellant wanted divorce, then he should have fairly and squarely separated from his wife before filing the divorce petition. Though the appellant, continued to live with the respondent, even after obtaining ex-parte divorce.
The Court said that the only conclusion that can be drawn is that the appellant misled his wife and contrived to fraudulently obtain her signatures on the summons and get the process Server’s report to show that she had been served in the divorce proceedings, while she continued to live with the appellant as his wife in complete ignorance of the said developments.
The Court dismissed the appeal with costs quantified at Rs. 1,00,000 and said that if the amount is not deposited, his divorce petition, which has been restored, would be liable to be dismissed for non-prosecution.
[Mahendra Prasad Dwivedi v. Lajji Devi, 2022 SCC OnLine Utt 1241, decided on 26-09-2022]
*Kriti Kumar, Editorial Assistant has reported this brief.
