The Judgment of the Court was delivered by
R. Narayana Pisharadi, J.:— The appellant is the wife and the respondent is the husband.
2. The respondent filed O.P No. 388/2017 in the Family Court for granting a decree of divorce under Sections 13(1)(ia), 13(1)(ib) and 13(1)(iii) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’). The appellant was set ex parte in the case as she failed to appear in the court even after service of summons by publication of the same in newspaper. Thereafter, the respondent filed proof affidavit and Ext.A1 document was marked. The Family Court found that the respondent is entitled to get a decree of divorce under Sections 13(1)(ia), 13(1)(ib) and 13(1)(iii) of the Act and accordingly, passed a decree of divorce dissolving the marriage between the appellant and the respondent. The judgment and decree of the Family Court are challenged in this appeal.
3. Notice on the respondent was served in the appeal. He made appearance in the appeal through counsel. When the appeal was taken up for hearing, there was no representation for the respondent and his counsel was absent. We have heard the learned counsel for the appellant.
4. Admittedly, the appellant did not file any application to set aside the ex parte decree passed against her. She has straightaway challenged the decree passed against her by filing the appeal.
5. An appeal is a statutory right. Appeal is a creature of statute. The extent and scope of an appeal is governed by statutory provisions.
6. Section 96 (1) of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) provides for appeal from every decree passed by any court exercising original jurisdiction. Section 96 (2) of the Code states that an appeal may lie from an original decree passed ex parte. Section 19(1) of the Family Courts Act, 1984 provides that notwithstanding anything contained in the Code, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. Section 19(2) of the Family Courts Act, 1984 states that no appeal shall lie from a decree or order passed by the Family Court with the consent of the parties.
7. Right of appeal provided under a statute is not taken away unless it is in derogation or contrary to any other statutory provision. There is no such provision which takes away the right of appeal provided to a party under Section 19 of the Family Courts Act, 1984. Therefore, the defendant who has suffered an ex parte decree passed by the Family Court has right of appeal against such decree though he has not exercised his remedy under Order IX, Rule 13 of the Code.
8. A defendant against whom an ex parte decree is passed has two options: The first is to file an appeal. The second is to file an application under Order IX, Rule 13 of the Code. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is also not taken away by filing an application under Order IX, Rule 13 of the Code. However, in view of the Explanation provided to Order IX, Rule 13 of the Code, if the appeal is disposed of on any ground other than withdrawal of it by the appellant, then no application under Order IX, Rule 13 of the Code shall lie. The reason is that the ex parte decree merges with the decree of the appellate court. But, the Explanation provided to Order IX, Rule 13 of the Code suggests that dismissal of the application filed for setting aside the ex parte decree does not bar an appeal from the original decree. When an application under Order IX, Rule 13 is dismissed, the remedy of the defendant is to file an appeal against such order. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal filed against the decree.
9. An appeal against an ex parte decree could be filed on the following grounds: (i) the materials brought on record in the ex parte proceedings in the suit by the plaintiff would not entail a decree in his favour; and (ii) the suit could not have been posted for ex parte hearing.
10. The aforesaid principles have been laid down by the Apex Court in Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787 : AIR 2005 SC 626 and Neerja Realtors v. Janglu, AIR 2018 SC 753.
11. The judgment of the lower court is assailed by the appellant on both grounds available to her, that is, the materials brought on record by the respondent are not sufficient to grant a decree of divorce in his favour and that she could not have been set ex parte in the petition for divorce. However, we need only consider here the first ground mentioned above.
12. The relevant portion of the judgment of the lower court is extracted below:
“The petitioner has filed proof affidavit in lieu of chief examination reiterating the petition averments. It is stated in the affidavit that the petitioner was subjected to all sort of mental cruelties by the respondent while they were living together as husband and wife. It is further stated that the respondent has deserted the petitioner without any valid reason since the year 2014. Ext.A1 is the copy of marriage certificate produced by the petitioner.
Upon considering the unchallenged oral testimony of PW1 and other materials before court, I am of the view that the petitioner's case stands proved. If that be so, the petitioner is entitled to get divorce decree under section 13(1)(ia)(ib)&(iii) of Hindu Marriage Act, 1955.”
13. The petition for divorce was filed by the respondent against the appellant on the grounds of cruelty, desertion and unsoundness of mind or mental disorder of the appellant. The judgment of the lower court does not reveal that it was satisfied that any of the aforesaid grounds existed to pass a decree of divorce in favour of the respondent. The lower court found that the case of the petitioner is proved on consideration of the unchallenged testimony of PW1 and “other materials” before the court. There was no “other material” before the lower court except the copy of the marriage certificate which was marked as Ext.A1 The judgment of the lower court does not contain any discussion of the oral evidence given by the respondent/petitioner in the case. The lower court has granted a decree in favour of the respondent even on the ground of unsoundness of mind or mental disorder of the appellant. The judgment of the lower court does not reveal on what basis it had reached a conclusion that the appellant was suffering from unsoundness of mind or mental disorder.
14. Recently, this Court had occasion to remind the lower courts about the requirements of a judgment which may be passed on admission or on making the defendant ex parte (See T. Sheeja v. C.P. Balakrishnan, 2018 (4) KHC 415). The impugned judgment of the lower court ex facie suffers from non-application of mind and it is liable to be set aside.
15. Consequently, we allow the appeal and set aside the judgment and decree passed by the Family Court, Mavelikkara in O.P No. 388/2017 and remand the case to the Family Court for fresh disposal. The parties shall appear before that court on 01.11.2018 The appellant is at liberty to file written statement in the case within a time to be fixed by the Family Court.