Madras High Court
CMA/2350/2021 of M.EASWARI Vs A.BARATH KUMAR on 8 October 2026
CMA No. 2350 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08-10-2026
CORAM
THE HON'BLE MR JUSTICE M.DHANDAPANI
AND
THE HON'BLE MR.JUSTICE P. DHANABAL
CMA No. 2350 of 2021
and
CMP No. 13199 OF 2021
CNR:{HCMA010924212021}
M.Easwari
..Appellant
Vs
A.Barath Kumar
... Respondent
Prayer: Civil Miscellaneous Appeal filed under Order XLIII Rule 1 of CPC read with Section 19 of Family Courts Act, praying to set aside the Fair and Decreetal order dated 29.03.2021 made in I.A.No.3 of 2021 in H.M.O.P.No.215
of 2019 on the file of Family Court, Tiruvallur and to allow the Civil Miscellaneous Appeal.
For Appellant:
Mr.C.Arivazhagan
For Respondent:
No Appearance
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Judgment
(Judgment of the Court was delivered by M.Dhandapani J.) Aggrieved by the fair and decretal order passed by the Family Court, Tiruvallur in I.A.No.3 of 2023 in H.M.O.P.No.215 of 2019, dated 29.03.2021, the appellant has preferred the present appeal.
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CMA No. 2350 of 2021
2. The appellant is the wife of the respondent. The respondent/husband filed H.M.O.P.No.215 of 2019 on the file of the Family Court, Thiruvallur, under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, seeking divorce and an ex-parte order was passed on 20.12.2019. To set aside the ex-parte order, the appellant filed an interim application in I.A.No.2 of 2020 in H.M.O.P.No.215 of 2019, under Order IX Rule 7 r/w Section 151 of CPC. Although the application was initially allowed on 13.03.2020, subject to payment of costs of Rs.1,000/-, subsequently, it was dismissed on 20.10.2020 due to the non-payment of the said costs. Thereafter, an ex-parte divorce decree was granted in favour of the respondent. To set aside the ex-parte decree, the appellant again filed a petition in I.A.No.3 of 2021 in H.M.O.P.No.215 of 2019 under Order IX Rule 13 r/w 151 of CPC, which was dismissed on 29.03.2021. Aggrieved by the same, the appellant has preferred this appeal.
3. Learned counsel appearing for the appellant submitted that the primary grievance of the appellant is that the divorce was granted ex-parte, and the entire proceedings were conducted by the trial court during the peak of the COVID-19 pandemic, from 2020 to 2021 and the government had imposed
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CMA No. 2350 of 2021
restrictions on the movement of the parties. Hence, he prays that this Court may set aside the order and remand the matter to the Trial Court for fresh adjudication.
4. Though the name of the respondent was printed in the cause list today, no one appeared on behalf of the respondent, however, considering the pendency of the appeal, this Court is inclined to dispose of this appeal based on the materials available on record. In this case, evidence of the appellant has not been recorded and only based on the respondent side evidence, the trial court passed order as the appellant was not appeared before the trial court. Since the appellant has not appeared before the trial court to adduce evidence, considering the nature of dispute and facts and circumstances of the case, it is appropriate to give one more chance to the appellant to put-forth his case before the trial court, thereby it is appropriate to set aside the fair and decreetal order of the trial court without going into the merits of the case.
5. This Court graciously considered the facts and circumstances to set aside the ex-parte order dated 29.03.2021, and deems it fit to remand the matter back to the Trial Court for fresh consideration. Accordingly, the impugned order
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CMA No. 2350 of 2021
dated 29.03.2021 passed by the Trial Court is set aside and the matter is remanded to the Trial Court for fresh consideration, on condition that the appellant shall pay a sum of Rs.2,000/- as costs to the Tamil Nadu Legal Services Authority, Chennai, within a period of two (2) weeks from the date of receipt of a copy of this order. Upon the deposit being made by the appellant within the time prescribed by this Court, the Trial Court is directed to restore the case in H.M.O.P.No.215 of 2019 and issue notice to the respondent. After the appearance of the respondent, the Trial Court shall dispose of the case on merits and in accordance with law after providing opportunities to all the parties, as expeditiously as possible.
6. With the above directions, the Civil Miscellaneous Appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed. (M.D.I.,J.) (P.D.B.,J.) 08-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No sp/arl
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CMA No. 2350 of 2021
To The Family Court, Tiruvallur.
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CMA No. 2350 of 2021
M.DHANDAPANI J. AND P.DHANABAL J. sp CMA No. 2350 of 2021 AND CMP NO. 13199 OF 2021 08-10-2026
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