Allahabad HC Upholds 'Ex-Parte' Divorce Decree Passed On Wife's Continued Absence, Says Natural Justice Can't Be Used To Defeat Ends Of Justice

The Allahabad High Court has held that even though opportunity of hearing before passing an order is non-negotiable, the same cannot be used to defeat the ends of justice. The Court held that if delay has been negligently or deliberately caused by one party, it cannot be allowed to take advantage of the delay.

The bench comprising Justice Saumitra Dayal Singh and Justice Shiv Shanker Prasad held,

“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 are offered to be paid. To accept the same, it would be to make mockery of justice dispensation.”

The proceedings for dissolution of marriage were instituted in 2011 which were dismissed in 2014 due to non-appearance of the Appellant-wife. Thereafter, respondent-husband instituted fresh proceedings for dissolution of marriage. Though Appellant-wife appeared in the beginning, however, she did not appear on twelve dates at the stage of evidence. Further, six dates were fixed for the Appellant-wife to lead evidence. Due to her non-appearance, the opportunity was closed in 2018.

Appellant-wife filed a recall application against closing of opportunity to lead evidence. Though twelve 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. Consequently, an ex-parte order was passed in 2021 granting divorce.

Thereafter, Appellant-wife filed a delay condonation application along with recall application against ex-parte decree of divorce granted in 2021 on 1^st July, 2022. The same was rejected by the Additional Principal Judge, Family Court, Moradabad.

The Court observed that the 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 previous conduct of the appellant clearly brings out her negligence or deliberate act to cause undue delay in the proceedings. The divorce case proceedings were instituted in the year 2014. The same ought to have concluded much earlier. As noted above, that delay is attributed to the conduct offered by the appellant in seeking repeated adjournments and ensuring her repeatedly absence from the proceedings. Thus she caused delay of almost seven years.”

The Court 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.

Accordingly, the Court 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.

“While requirement to give opportunity of hearing is non-negotiable, it is not for the litigant to use that pure principle applied by courts, to defeat the ends of justice. It is not uncommon in our court practices that a party tries to take undue advantage of that principle of natural justice enforced by Courts,” held the Court.

Case Title: Smt. Jyoti Verma vs. Prashant Kumar Verma 2023 LiveLaw (AB) 453 [FIRST APPEAL No. - 1210 of 2023]

Citation: 2023 LiveLaw (AB) 453

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