Delhi HC Upholds Refusal To Recall Divorce Decree After Wife Missed Hearings While Appearing In Brother-in-Law’s Case At Same Court Complex

The respondent obtained a decree dissolving the parties’ marriage on the ground of cruelty on 8 February 2019.

The petitioner had participated in the matrimonial proceedings but was absent on the dates fixed for her evidence and final arguments; the Family Court closed her right to lead evidence and decided the petition on the record.

She later applied under Order IX Rule 13 CPC to set aside the decree, alleging that medical difficulties and her participation in parallel criminal proceedings had prevented her from appearing.

The Family Court condoned the 73-day delay in filing that application but dismissed it on the merits on 11 July 2025, finding no sufficient cause for her absence.

The petitioner challenged both the decree and the dismissal of her recall application in this revision petition.

Order IX Rule 13 CPC permits setting aside an ex parte decree where the applicant establishes sufficient cause for non-appearance; Order XVII Rules 2 and 3 govern the court’s procedure when a party fails to appear or produce evidence.

Sections 5 and 123 of the Limitation Act address condonation of delay and the limitation period for an Order IX Rule 13 application, respectively.

Under Section 19(1) and (3) of the Family Courts Act, 1984, a non-interlocutory Family Court judgment or order is appealable to the High Court on facts and law, ordinarily within 30 days; Section 19(5) limits other appeals or revisions except as provided in that section.

Article 227 is supervisory, not appellate, and does not ordinarily permit reappreciation of evidence or circumvention of an available statutory appeal; the Court relied on Estralla Rubber v. Dass Estate (P) Ltd., Radhey Shyam v. Chhabi Nath, M/s Garment Craft v. Prakash Chand Goel, Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society, and Mohamed Ali v. V. Jaya.

Bhanu Kumar Jain v. Archana Kumar recognises the distinct remedies of an Order IX Rule 13 application and an appeal against the decree, while S.P. Chengalvaraya Naidu v. Jagannath and A.V. Papayya Sastry v. Government of A.P. establish that fraud can vitiate a decree when proved; an allegation alone does not establish fraud.

The High Court found that the Family Court had considered the petitioner’s medical material and explanation, along with her admitted awareness of the divorce case and her appearances in the parallel criminal proceedings—including on a date when both cases were listed at Tis Hazari.

It held that the Family Court’s conclusion that she had not shown sufficient cause was based on the record and disclosed no perversity, jurisdictional error, or material irregularity warranting interference.

As to the original decree, the petitioner had a statutory appeal under Section 19 of the Family Courts Act but instead pursued—and lost—her Order IX Rule 13 application.

Article 227 could not be used after substantial delay to obtain a merits review that should have been pursued by appeal.

The fraud authorities did not assist her because fraud had not been established, and the circumstances she relied on had already been considered in the recall proceedings.

It declined to entertain the challenge to the 8 February 2019 decree at this belated stage, holding that supervisory or revisional jurisdiction could not substitute for the unpursued statutory appeal absent a demonstrated jurisdictional infirmity or other exceptional circumstance.

The petition was dismissed and disposed of, along with any pending applications.