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2017 SCC ONLINE ALL 2348 . 2017 SCC ONLINE ALL 2348 .

Aparna v. Gyanendra

Allahabad High Court (Sep 1, 2017)

CASE NO.
First Appeal Defective No. - 68 of 2017

ADVOCATES

- Vijas Sharma

Counsel for Appellant:- Ishan Baghel, Ambica Tripathi, Shivanshu Bajpai

JUDGES

Devendra Kumar Arora

Rang Nath Pandey, JJ.

Summary

1. 3. It is stated in the affidavit filed in support of the present application, that appellant was living happily

with her husband (respondent) and he filed a divorce petition before the Family Court Hardoi on 25.2.2014

without disclosing the same to the appellant.

2. 4. The application for condonation of delay was opposed by learned Counsel for the respondent and he

has submitted that the appellant was having every knowledge and when she did not appear in the

proceedings, a publication was made in "Gramin Sahara" newspaper and later on after hearing and

examining the entire records, the learned Court has proceeded ex-parte decree of divorce.

JUDGMENT

1. Heard learned Counsel for the opposite parties.

Printed by licensee : Kanwarpal Verma Page 1 of 2

2. This is an application for condonation of delay in filing appeal under Section 19 of Family Courts Act

1984.

3. It is stated in the affidavit filed in support of the present application, that appellant was living happily

with her husband (respondent) and he filed a divorce petition before the Family Court Hardoi on 25.2.2014

without disclosing the same to the appellant. It is evident from the record that summons were not received

by the appellant because summons were sent where she was not residing. Thereafter, a publication has

been made in Gramin Sahara newspaper, which has very negligible circulation in the area and on the

basis of publication, service has been presumed to be served upon the appellant and an ex-parte decree

of divorce was obtained by the respondent, whereas when the case was filed, the appellant was residing

with the respondent and she was subsequently force to leave the house on 7.9.2014 The appellant for the

first time came to know about the ex-parte decree on 6.1.2017, in the proceedings of maintenance case

and thereafter on 29.1.2017 an application was filed under Order IX Rule 13 of the C.P.C, which has

registered as Misc. Case No.-2 of 2017 and the same was rejected vide order dated 18.3.2017 and

thereafter the appellant has filed two appeals, first against the order rejecting the application under Order

IX Rule 13 of the C.P.C and the second one against the ex-parte decree of divorce.

4. The application for condonation of delay was opposed by learned Counsel for the respondent and he

has submitted that the appellant was having every knowledge and when she did not appear in the

proceedings, a publication was made in Gramin Sahara newspaper and later on after hearing and

examining the entire records, the learned Court has proceeded ex-parte decree of divorce.

5. We have examined the submissions of learned Counsel for the parties and gone through the record. It

is admitted that the appellant was residing with the respondent till 25.2.2014, when the divorce petition

was filed. Learned Counsel for the respondent is not able to reply the same and from perusal of the lower

court's record it is evident that the address of the appellant was shown as resident of Mohalla-Nawabganj

Kasba and Pargana-Sandi Tehsil Bilgram District Hardoi whereas the appellant on the said date was

residing with the respondent.

6. Considering the statement of facts as mentioned in the affidavit filed in support of the application, the

application stands allowed.

7. Delay is condoned.