FCA29.17-Judgment 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 29 OF 2017
APPELLANT :- Pushpa w/o Arun Bhagat, Aged 43 yrs.,
[Ori.Respd.] Occ. Household, R/o. C/o. Shri Gajanan S.
[On R.A.] Kamble, Hamdapur, Tq. Seloo, Distt.
Wardha.
...VERSUS...
RESPONDENT :- Arun s/o Tukaram Bhagat, Aged about 52
[Ori.Petitioner] years, Occu: Service, R/o. Plot No.79/A,
New Indira Colony, Bhagwan Nagar Road,
Bhagwan Nagar, Nagpur.
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Mr.Mahesh V. Rai, counsel for the appellant.
Mr.A.S.Kulkarni, counsel for the respondent.
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CORAM : SMT. VASANTI A NAIK &
M. G. GIRATKAR
, JJ.
DATED : 13.09.2017 O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.) The family court appeal is admitted and heard finally at the stage of admission with the consent of the learned counsel for the parties, specially when the appellant was not represented before the Family Court and an ex parte decree for restitution of conjugal rights is passed in favour of the respondent.
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FCA29.17-Judgment 2/7
2. The appellant and the respondent were married on 24/05/1995 at Hamdapur and two children are born to them from the wedlock. The respondent-husband had filed proceedings against the appellant-wife for a decree of divorce under section 13(1) (i) and (i-a) of the Hindu Marriage Act. According to the husband, the appellant- wife had voluntary sexual intercourse with another man namely Raju Dhonge during the subsistence of the marriage between the appellant and the respondent. The husband had pleaded in the said petition that the wife had treated him with cruelty. The Family Court, however by the judgment dated 28/07/2013 dismissed the petition filed by the husband after holding that the husband had failed to prove that the wife had voluntary sexual intercourse with another man during the subsistence of the marriage between the parties. The Family Court held that the husband was not successful in proving that the wife had treated him with cruelty. After the said petition filed by the husband was dismissed by the Family Court on 20/07/2013, the husband filed proceedings before the Family Court under section 9 of the Hindu Marriage Act for restitution of conjugal rights. In the said proceedings, it was pleaded by the husband that the wife was not treating the husband well and she used to leave the matrimonial house by keeping her small children at home. It was pleaded that the wife had left the matrimonial home and had started residing with her parents. It is ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:22:13 ::: FCA29.17-Judgment 3/7 pleaded that when he tried to contact her, she had informed him that she requires Rs.35,000/- to Rs.40,000/- per month for shopping and she also wanted half share in his landed property. It was pleaded by the husband that since the wife was not ready to return to the matrimonial home, it was necessary to pass a decree against the wife for restitution of conjugal rights. Though the wife received the notice of the proceedings filed by the husband before the Family Court, neither the wife nor her counsel had attended the proceedings before the Family Court and hence the Family Court passed a decree for restitution of conjugal rights in favour of the husband. The said judgment of the Family Court is challenged by the appellant-wife in this family court appeal.
3. Shri Rai, the learned counsel for the appellant submitted that the Family Court was not justified in passing the ex-parte decree in favour of the respondent-husband without granting an opportunity to the appellant to defend the petition. It is stated that though the judgment of the Family Court in the earlier petition, dated 20-7-2013, dismissing the petition filed by the husband was placed before the Family Court at Exhibit 23, the Family Court did not consider the said judgment before granting the relief in favour of the husband. It is submitted that the counsel for whom the appellant had singed the Vakalatnama did not appear in the matter and did not represent the ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:22:13 ::: FCA29.17-Judgment 4/7 appellant. It is submitted that by taking a lenient view in the matter, this Court may remand the matter to the Family Court more so when the previous judgment was available and was not considered before passing the ex-parte decree.
4. Shri Kulkarni, the learned counsel for the respondent supported the judgment of the Family Court. It is submitted that after service on the appellant, the Family Court granted opportunity to the appellant to defend the petition, however, the appellant did not avail of the same. It is submitted that there is no material tendered by the appellant in this Court that the Vakalatnama was indeed signed by the appellant and that the counsel had not represented the appellant in the Family Court. It is stated that even the name of the counsel who was supposed to represent the appellant is not mentioned. It is stated that in the circumstances of the case, the appeal is liable to be dismissed.
5. On hearing the learned counsel for the parties and on a perusal of the original record and proceedings, it appears that the following points arise for determination in this appeal : -
(i) Whether the ex-parte judgment of the Family Court is liable to be set aside and an opportunity is liable to be granted to the appellant to defend the petition filed by the respondent - husband ?
(ii) What order ?
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FCA29.17-Judgment 5/7
6. We have perused the original record and proceedings as also the roznama. It appears that after the notice was served on the appellant, the matter was adjourned by the Family Court on a few occasions so as to grant an opportunity to the appellant to defend the petition. It appears that neither the appellant nor her counsel was present in the Family Court on the due dates of hearing. In the circumstances of the case, the Family Court cannot be blamed for passing an ex-parte decree in the petition filed by the husband. However, in the circumstances of the case, specially, when the Family Court has not considered the relevance or impact of the previous judgment dated 20-7-2013 at Exhibit 23, while answering the issues involved in the petition filed by the husband for restitution of conjugal rights, it would be necessary to remand the matter to the Family Court for a fresh decision on merits after granting an opportunity to the appellant to defend the petition filed by the husband. In our considered view, when the judgment dated 20-7-2013 was available before the Family Court, it was necessary for the Family Court to consider whether the answers on the points for determination in the judgment in that petition would have had some effect on the points that are framed in the petition filed by the husband for a decree of restitution of conjugal rights. In the previous petition, the claim of the husband that the wife had voluntary sexual intercourse with another man during the ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:22:13 ::: FCA29.17-Judgment 6/7 subsistence of the marriage and that she had treated him with cruelty was decided against the husband. What impact the said findings would have had on the issue whether the wife had a just and reasonable excuse to reside away from the husband should have been considered by the Family Court. We find that the non consideration of the said judgment which was on record before the Family Court would vitiate the ex-parte judgment of the Family Court as it is well settled that even if the matter is not defended by the defendant or the opponent, it would be necessary for the Court to consider the material on record before passing the order of either granting the prayer made in the proceedings or of rejecting the prayer made in the proceeding. It is well settled that even if the defendant does not defend the proceeding filed against him, it would not be necessary for the Court to pass a decree in favour of the party approaching the Court. The Court may, in the circumstances of the case, consider granting or refusing to grant a decree.
7. Hence for the reasons aforesaid, the family court appeal is partly allowed. The judgment of the Family Court dated 28-9-2016 is hereby set aside. The Family Court is directed to decide the petition filed by the husband for restitution of conjugal rights after granting an opportunity to the appellant to defend the petition. The parties are directed to appear before the Family Court on 3-10-2017 so that the issuance of notice to the parties could be dispensed with. The Family ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:22:13 ::: FCA29.17-Judgment 7/7 Court is directed to decide the petition as early as possible. Order accordingly. No costs.
The record and proceedings be remitted to the Family Court at the earliest.
JUDGE JUDGE
KHUNTE - WASNIK
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