KOKJE, J. - (1.) THIS is an appeal under Section 19 of the Family Courts Act, 1984 against the Order dated July 10,1995 directing ex-parte proceedings against the appellant the original non petitioner (hereinafter referred to as 'wife'), in a case under Section 13 of the Hindu Marriage Act, 1955 for a decree of divorce dissolving the marriage between the parties.
(2.) A brief history of the proceedings culminating in passing of the impugned order would be necessary for appreciating the controversy. The original application for decree of divorce was filed by the respondent herein (herein after referred to as 'husband'), on October 12, 1993. Several opportunities were given for filing reply to the main petition but the wife did not file reply and on September 28, 1994, her right to file a reply was closed and the case was fixed for evidence on the original application. On November 7, 1994, the reply filed by the wife to the application under Section 13 of the Hindu Marriage Act was taken on record as per the directions of this Court. In the meanwhile, an application under Section 10 of the Code of Civil Procedure (hereinafter to be referred as 'the Code'), was moved by the wife for stay of the proceedings on the ground of pendency of earlier proceeding filed by her claiming maintenance under the Hindu Adoptions & Maintenance Act, 1956. On February 13, 1995, this application under Section 10 of the Code was rejected and the case was posted for March 13, 1995 for evidence of the husband. Ultimately, on April 24, 1995 statements of the husband and his witnesses Chitranjan Bhansali and Dr. Gula Rabani were recorded but the cross-examination of the witnesses was deferred and the case was directed to be put up on May 17, 1995. On May 17, 1995, the wife remained absent and moved an application for adjournment on the ground of her illness. The Court granted the adjournment despite strong objection on the part of the husband and adjourned the case to May 27, 1995 for cross-examination of the witnesses already examined as also for recording of the statements of the remaining witnesses of the husband. On that day also an application for adjournment was moved on behalf of the wife on the ground of her illness. The prayer was strongly objected on behalf of the husband but ultimately the Court granted the prayer in the interest of justice and adjourned the case to July 3, 1995. On July 3, 1995, a prayer for consolidation of the case under Section 13 of the Hindu Marriage Act and the case under the Hindu Adoptions & Maintenance Act, 1956 was allowed and issues were amended in the light of the consolidation of the two proceedings. As the case was fixed for the evidence of the husband including his cross-examination, the court wanted to proceed to take evidence but the wife moved an application that looking to the complications in the case, she may be permitted to be represented through a legal practitioner. The prayer was objected to on behalf of the husband and it was rejected. The wife then expressed her inability to" cross-examine the husband on that day and prayed for two days time which was granted by the Court and the case was fixed for July 5, 1995 for evidence of the husband. On July 5, 1995, the wife presented an application under O. XIV R. 5 of the Code for amendment of the issues in the light of the consolidation of the proceedings. She also submitted an application under S. 151 of the Code for adjournment of the case for three weeks to enable her to challenge the Order of the Court rejecting her prayer for being allowed to be represented through a legal practitioner. The prayers were vehemently opposed on behalf of the husband and it was urged that the wife was trying to protract the proceedings in order to harass the husband. The Court rejected the application for amendment of the issues as the issues had already been recast in the light of the consolidation of the proceedings. The Court also rejected the application for adjournment relying on the decision of the Supreme Court in V. Bhagat vs. D. Bhagat (Mrs.) (l ). 'the wife then filed an application expressing inability to cross-examine the husband on that day and prayed for five days time for preparation. The prayer was again opposed by the husband but the Court granted time in the interest of justice. The case was then adjourned to July 10, 1995. On July 10, 1995 the wife was absent. She sent an application to the Court praying for adjournment on the ground of suffering depression attaching a medical certificate with the application. The application was opposed on behalf of the husband and it was refuted that the wife was ill. An affidavit was filed on behalf of the husband that the wife was seen moving about and alleging that the application was moved to protract the litigation. The Court considered the material before it and the back-ground of the case and relying on the decision of the Supreme Court in V. Bhagat vs. D. Bhagat (Mrs.) (supra), rejected the application for adjournment and directed exparte proceedings to be taken against the wife and fixed the case for July 26, 1995, for arguments. It is this Order dated July 10,1995, which is under challenge in this appeal.
(3.) A preliminary objection has been raised that the impugned order is an interlocutory order and therefore, an appeal did not lie in view of specific provision of Section 19 of the Family Courts Act, 1984. It would be in the fitness of things to decide this preliminary objection as to the maintainability of the appeal first before touching the merits of the case. Section 10 of the Family Courts Act, 1984 makes the Code applicable to the proceedings before the Family Court subject to the other provisions of the Family Courts Act and the Rules made thereunder. Order XVII of the Code governs adjournments. Order XVII R. 2 provides that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit Order XVII R. 3 of the Code provides that where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, if the parties are present, proceed to decide the suit forthwith or if the parties are, or any of them is, absent, proceed under R. 2. In the present case, the case was specifically fixed on July 10, 1995 for the purpose of cross-examination of the husband and examination of his witnesses. The case was earlier fixed on July 5, 1995 also for the same purpose and time was granted to the wife to cross-examine the husband and to be prepared for the evidence of other witnesses. The case therefore, squarely fell within the scope of Order XVII R. 3 of the Code and when the wife was not present on July 10, 1995, the Court could proceed under Order XVII R. 2 of the Code. Order XVII R. 2 of the Code empowers the Court to proceed to dispose of the suit in one of the modes provided under O. IX of the Code. Order IX R. 6 of the Code empowers the Court to make an order that the suit shall be heard exparte where the plaintiff appears and defendant does not appear when the suit is called on for hearing. Therefore, the Court was well within its jurisdiction when it ordered that the suit shall be heard exparte. This undoubtedly was an order under Order IX R. 6 read with Order XVII R. 2 and Order XVII R. 3 of the Code. ;