Yatendra Singh Chouhan vs Himani Sisodia

This appeal under Section 19 of the Family Court Act, 1984 has been filed by the appellant-husband against his wife assailing the order dated

13.11.2019 passed by learned Family Court No.1, Jodhpur, whereby, the application filed by the appellant herein under Order IX, Rule 7 CPC during

the proceeding under Section 9 of the Act of 1955 has been rejected.

Brief facts of the case are that the respondent - Smt. Himani Sisodia preferred an application under Section 9 of the Hindu Marriage Act, 1955 for

restitution of conjugal rights against her husband before the learned Family Court on 07.02.2019. After service of the notice of application, the

appellant made his appearance on 25.04.2019. Thereafter appellant did not appear before the learned Family Court for consecutive 4-5 dates. On

26.08.2019 learned Family Court ordered ex parte proceeding against the appellant-husband and fixed the next date for pronouncement of order on the

application under Section 24 of the Act of 1955, which was filed during the proceeding under Section 9 of the Act of 1955 on 07.02.2019, to which,

reply was also filed by the appellant on the first date of his appearance before the learned Family Court i.e. on 25.04.2019.

Thereafter appellant filed an application under Order IX, Rule 7 CPC before the learned Family Court on 15.10.2019 with the prayer to set aside the

ex parte proceeding initiated against him in the application for restitution of conjugal rights.

After taking on record reply to the said application and hearing the parties, learned Family Court passed the impugned order dated 13.11.2019,

whereby, the said application under Order IX, Rule 7 CPC was rejected.

During the arguments, learned counsel for the appellant submitted that on account of ex parte proceeding, the application filed by the respondent under

Section 24 of the Act of 1955 was also decided ex parte against him. It is also submitted that if ex parte proceeding is not set aside then appellant will

be deprived of producing the relevant documents regarding his income, whereas, learned Family Court while deciding the application under Section 24

of the Act of 1955 came to the conclusion that the appellant is employed in a Company as a Sales Executive and consequently, he was ordered to pay

Rs. 10,000/- per month as maintenance amount to his wife respondent herein.

It is also submitted by learned counsel for the appellant that after giving appearance on 25.04.2019, on the next dates appellant fell ill and his counsel

did not inform him about the next dates of hearing. In these circumstances, justice requires that ex parte proceeding, initiated against the appellant,

should be set aside and the appellant may be heard in accordance with provisions of Order IX, Rule 7 CPC.

On the contrary learned counsel for the respondent submitted that the appellant herein did not appear willfully on the 4-5 consecutive dates with the

aim to avoid payment of maintenance amount under Section 24 of the Act of 1955.

We have heard learned counsel for the parties and perused the record.

The appellant herein filed an application under Order IX, Rule 7 CPC before the learned Family Court with the averments that in the proceeding for

restitution of conjugal rights order should be passed after hearing both the parties. In the said application the appellant nowhere challenged the order

passed under Section 24 of the Act of 1955, hence the arguments of counsel for the appellant that if ex parte proceeding initiated against him is set

aside then he will be able to produce documents relating to his income in the application under Section 24 of the Act of 1955 are misconceived.

As already observed that the application under Order IX, Rule 7 CPC was preferred for setting aside the ex parte proceedings initiated against the

appellant in the petition for restitution of conjugal rights and the order of maintenance passed by the learned Family Court under Section 24 of the Act

of 1955 was nowhere challenged before the learned Family Court. In our considered opinion, if the appellant is aggrieved by the order of maintenance

passed against him under Section 24 of the Act of 1955, he could have availed the appropriate remedy provided under the law before the learned

Family Court. The provisions of Order IX, Rule 7 CPC do not apply for interference with the final order passed in proceeding under Section 24 of the

Act of 1955 by the learned Family Court awarding maintenance money to the respondent - wife.

As regards setting aside the order initiating ex parte proceeding of application under Section 9 of the Act of 1955 is concerned, looking to the nature of

controversy involved in the matter, we deem it appropriate that the application under Section 9 of the Act of 1955 should be tried in the presence of

both the parties. The appellant has already filed reply to the petition and issues have already been framed by the learned Family Court and no other

proceedings have taken place in the absence of appellant. Otherwise also learned Family Court has observed that the appellant is entitled to take part

in the further proceedings.

For the inconvenience caused to the respondent on account of proceeding under Order IX, Rule 7 CPC and the appeal thereafter before this Court,

she can be compensated in the terms of money.

In the result, the appeal is allowed with the cost of Rs. 10,000/-. The order dated 26.08.2019 initiating ex parte proceeding against the appellant is set

aside. The appellant is entitled to be heard in answer to petition under Section 9 of the Act of 1955.

It is clarified that setting aside of ex parte proceeding shall not disturb the order passed under Section 24 of the Act of 1955.

However, this will not preclude the appellant from availing the remedy available in law if aggrieved by that order.