Matrimonial Suits Should Not Be Dismissed For Non-Appearance Where Representation Through Counsel Is On Record

In brief

The question

1. Whether the Family Court was justified in dismissing the matrimonial suit under Order IX Rule 8 of the CPC when the plaintiff’s counsel had filed an attendance on the date of hearing

The court held

The High Court answered both issues in the negative, holding that the dismissal was abrupt and lacked due consideration of the counsel's appearance.

It also directed

The court set aside the order dated 14.02.2020 and remanded the matter to the Family Court, Patna, for a fresh hearing on its merits

The trial court is directed to resolve the case expeditiously, preferably within nine months

The appeal was disposed of accordingly

01Facts

The appellant (husband) filed Matrimonial (Divorce) Case No. 510 of 2017 against the respondent (wife) alleging mental cruelty and family discord

¶ 2

Following the filing, the respondent initiated criminal proceedings under Section 498(A) IPC and the D.P. Act as a "counter-blast"

¶ 3

During the pendency of the divorce suit, the appellant’s father passed away, and his mother fell ill

¶ 4

On 14.02.2020, the learned Additional Principal Judge, Family Court, Patna, dismissed the divorce petition under Order IX Rule 8 of the Code of Civil Procedure (CPC) for non-appearance of the plaintiff, despite the appellant’s counsel having filed an attendance (hazari) on that date

¶ 1, 6-7

The appellant contended his personal absence was due to his occupation as a salesman during the onset of the COVID-19 pandemic and family hardships

¶ 5

02Issues

i.1. Whether the Family Court was justified in dismissing the matrimonial suit under Order IX Rule 8 of the CPC when the plaintiff’s counsel had filed an attendance on the date of hearing

¶ 7, 9

ii.2. Whether the court should adopt a pedantic or technical approach in dismissing sensitive matrimonial disputes for procedural defaults

¶ 10-11

03Law Applied

Order IX Rule 8 of the Code of Civil Procedure, 1908, which pertains to the dismissal of a suit where the defendant appears but the plaintiff does not

¶ 1

In matrimonial proceedings, courts must prioritize the "sensitive nature" of the dispute over strict "procedural aspects"

¶ 11

The principle of Audi Alteram Partem, asserting that a suit should not be dismissed without providing an "effective opportunity" and a "balanced view" to the parties involved

¶ 10-11

Provisions in the judgment · 5 · Linked ones open on LawLens

Indian Penal Code, 1860 Section 379 Section 509 Section 34

Dowry Prohibition Act, 1961 Section 3 Section 4

04Reasoning

The High Court found that the Family Court acted in a "mechanical manner and in haste" by dismissing the suit

¶ 7

The Court noted that even though the appellant was not personally present, his legal representation was on record, and a hazari (attendance) had been filed by his counsel on the day of dismissal

¶ 9, 12

The Court reasoned that matrimonial cases are uniquely sensitive and require a "balanced view" rather than a "pedantic approach"

¶ 10-11

It observed that the trial court failed to provide a "last opportunity" or warning before dismissal and ignored the legitimate hardships faced by the appellant, such as the death of his father and the COVID-19 pandemic risks

¶ 5, 12

Consequently, the High Court determined that procedural technicalities should not be permitted to hamper the resolution of matrimonial lives

¶ 11