NEW DELHI: The Delhi High Court has set aside an order granting divorce to a husband on the ground of non-appearance of wife before the family court during the COVID-19 pandemic.
A bench of Justices Vipin Sanghi and Rekha Palli said the family court's September 24, 2020 judgement cannot sustain as it has been passed without granting due opportunity to the woman to contest the divorce petition in which she had already filed her written statement.
"On March 16, 2020, when the matter was fixed before the family court, the pandemic had already set-in and the functioning of the courts was also severely restricted.
"In fact, the courts subordinate to this court were specifically instructed not to pass any adverse orders against those who did not appear either physically or in proceedings through video conferencing due to the pandemic," the bench said.
The high court also said no doubt the woman's counsel did not appear before the family court on March 16, 2020 but "we are of the view that in the light of the then prevailing circumstances, the family court should have waited for the woman to appear and contest the proceedings, rather than hurriedly proceeding ex-parte against her".
It set aside the trial court's judgement granting divorce and remanded the case to the family court for re-adjudication from the stage the woman, represented through advocate Preeti Singh, was proceeded ex-parte.
It also made clear that while setting aside the judgement, it has not gone into the merits of the case and it shall not influence the mind of the family court in deciding the divorce petition.
The couple got married in February 2013 and have been living separately since March 2013.
One son was born out of marital wedlock and the husband had filed divorce petition before the Patiala House family court here on the ground of cruelty.
Since the woman or her counsel did not appear before the family court on March 16, last year, she was proceeded ex-parte.
Thereafter, the family court fixed the matter for hearing through video conferencing as physical hearings were not being held on account of the pandemic.
As the woman did not appear in those proceedings, the court passed an ex-parte judgement and allowed the divorce petition filed by the husband.
Challenging the family court's order, advocate Singh submitted that the wife had been regularly appearing before the court since filing of the petition but she could not appear on one day, that is, March 16, 2020 and the family court hurriedly proceeded against her ex-parte.
The counsel also referred to the high court's March 13, 2020 notification in which it had asked the lawyers to advise their clients not to visit the court unless directed by the court.
It was also directed that no adverse orders would be passed due to non-appearance of parties during the pandemic.