The Allahabad High Court has upheld the ex-parte order passed by a Moradabad court in 2021 in divorce proceedings on the grounds of continued non-appearance of the wife.
The Bench of Justice Saumitra Dayal Singh and Justice Shiv Shanker Prasad recently observed that even though the opportunity of hearing before passing an order was non-negotiable, the litigant cannot use the pure principle applied by courts to defeat the ends of justice.
If delay has been negligently or deliberately caused by one party, it cannot be allowed to take advantage of the delay, noted the High Court, adding that it was not uncommon in court practices that a party tried to take undue advantage of that principle of natural justice enforced by the Courts.
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It said delay largely attributed to the conduct of a party, he may never be allowed to turn around and take advantage of the same even if the costs were offered to be paid. To accept the same, it would be to make a mockery of justice dispensation.
The matter pertained to proceedings for dissolution of marriage, which were instituted in 2011 and dismissed in 2014 due to non-appearance of the Appellant-wife.
The respondent-husband then instituted fresh proceedings for dissolution of marriage. Though the Appellant-wife appeared in the beginning, however, she did not appear on 12 dates at the stage of evidence. Further, six dates were fixed for the Appellant-wife to lead evidence. This opportunity was closed in 2018 due to her non-appearance.
The Appellant-wife filed a recall application against closing of opportunity to lead evidence. Though 12 dates were fixed on her application, she failed to appear. Accordingly, the application was dismissed for want of prosecution. Thereafter, she filed recall applications and continued to remain absent from the proceedings.
An ex-parte order was passed in 2021 granting divorce.The Appellant-wife then filed a delay condonation application along with recall application against ex-parte decree of divorce granted in 2021 on July 1, 2022. The same was rejected by the Additional Principal Judge, Family Court, Moradabad.
The Court observed that even though certain medical documents had been annexed along with the application, there was no ‘real obstruction,’ which prevented her from filing recall application over a long duration from November 2021 to July 2022.
The court noted that the previous conduct of the appellant clearly brought out her negligence or deliberate act to cause undue delay in the proceedings. The divorce case proceedings were instituted in 2014. The same ought to have concluded much earlier.
The delay was attributed to the conduct offered by the appellant in seeking repeated adjournments and ensuring her repeated absence from the proceedings. Thus, she caused a delay of almost seven years.
It observed that even though the Court below had posted the case for ex-parte final hearing, it granted opportunity to the Appellant-wife to appear. However, the Appellant-wife continued to skip the proceedings and cause undue delay.
The High Court then upheld the order of the Additional Principal Judge, Family Court, Moradabad as there was no sufficient cause to allow the condonation of delay in filing the recall application or to recall the ex parte order itself.
(Case title: Smt Jyoti Verma vs Prashant Kumar Verma)