In D.B. Civil Misc. Appeal No.2084/2022-RAJ HC- If divorce petition has been dismissed by Family Court for non-appearance of both  parties, then restoration application should be jointly filed by them and not by husband/wife alone: Rajasthan HC
Justices Vijay Bishnoi & Yogendra Kumar Purohit [05-05-2023]

Read Order: Arvind Kumar Bhatnagar v. Neeti Bhatnagar 

Tulip Kanth

Jodhpur, May 8, 2023: The Jodhpur Bench of the Rajasthan High Court has dismissed an appeal under Section 19 of the Family Court Act, 1984 and Section 28 of the Hindu Marriage Act, 1955 preferred by the appellant-husband against an order dismissing his application seeking restoration of the divorce petition which was dismissed for default of appearance and non- prosecution.

“The divorce petition has been dismissed by the Family Court for the non-appearance of both the parties. In such a situation, the application seeking restoration of the divorce petition should have been filed before the Family Court by the parties jointly…”, the Division Bench of Justice Vijay Bishnoi and Justice Yogendra Kumar Purohit opined.

The factual background of this case was such that the marriage between the appellant and the respondent was solemnized according to the Hindu Customs and Rites in 1991 at Lucknow and out of the said wedlock, two children were born. 

However, on account of differences cropped up between the parties, they decided to dissolve their marriage by mutual consent and a compromise was also arrived at between the parties. Accordingly, the appellant and the respondent jointly preferred a petition before the Family Court under Section 13B of the Hindu Marriage Act seeking a decree of divorce by mutual consent, which was registered and ordered to be posted awaiting second motion and for evidence of the parties. 

However, neither the appellant nor his counsel appeared before the Family Court despite several dates fixed in the matter. Thereafter, the Family Court dismissed the petition in default of appearance and non- prosecution.

Aggrieved by the said order dismissing the divorce petition, the appellant preferred application for restoration of the petition stating therein that the appellant resides at Dubai, United Arab Emirates and presently he is residing at Belgium and since the Corona Virus outbreak was in vogue, he could not appear before the Family Court.

It was also submitted that the non-appearance of the appellant on the date fixed was bonafide and not intentional, and accordingly prayer was made to restore the divorce petition.The Family Court after hearing both the parties, by a detailed order rejected the restoration application. Hence, this appeal was filed.

Observing that a petition under Section 13B of the Hindu Marriage Act seeking decree of divorce by mutual consent is filed jointly under the signatures of both the parties i.e. husband and wife, the Bench took note of the fact that the divorce petition had been dismissed by the Family Court for the non-appearance of both the parties. 

As per the Bench, the application seeking restoration of the divorce petition should have been filed before the Family Court by the parties jointly and since the restoration application was filed by the appellant alone, the same was not maintainable.

Thus, on this count alone, the Bench didn’t interfere with the order passed by the Family Court.