NEUTRAL CITATION
C/FA/924/2023 JUDGMENT DATED: 29/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 924 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/FIRST APPEAL NO. 924 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KRUPA W/O PRIYANK HITENDRABHAI GANDHI D/O DHANSUKHBHAI
JAYANTILAL GANDHI
Versus
PRIYANK HITENDRABHAI GANDHI
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Appearance:
MR JF MEHTA(461) for the Appellant(s) No. 1
K T BELADIYA(9101) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 29/08/2023
ORAL JUDGMENT
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NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined (PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)
1. The present first appeal has been filed by the appellant- wife under Section 19 of the Family Courts Act challenging the judgment and decree passed by the learned Principal Judge, Family Court at Navsari dated 02.09.2022 in the Family Suit No.137 of 2021.
2. The appellant-Krupa W/o. Priyank Hitendrabhai Gandhi is the original defendant and the respondent-Priyank Hitendrabhai Gandhi is the original plaintiff in the main proceedings and, therefore, for the sake of convenience and brevity, they shall hereinafter be referred to as the defendant and the plaintiff respectively. The Code of Civil Procedure, 1908 shall hereinafter be referred to as the 'Code' and the Hindu Marriage Act, 1955 shall hereinafter be referred to as the 'Act'.
3. The facts giving rise to the present appeal may be summarized as under;
3.1 The original defendant got married with the plaintiff on 13.07.2021 as per the Hindu Rites and Rituals at Ramji Temple Wadi. After the marriage, the defendant came to her matrimonial home and started residing with the plaintiff.
3.2 It is alleged by the plaintiff in the suit that after the marriage, on the very first night of the marriage, the defendant declined to develop the relationship of cohabitation with the plaintiff and told him that she did want to marry him and the marriage has been solemnized against her will and wish. It is Page 2 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined also alleged in the suit that she also told and administered threat to the plaintiff on the very first night of their marriage that if he would even try to touch her hand, then she will commit suicide. It is also alleged that if any work relating to household chore was given to her, then she started to abuse the family members.
3.3 It is alleged that the defendant stayed at the house of the plaintiff only for six days, and during that period, she has not missed any chance to disrespect the plaintiff as also there was no cohabitation between them as husband and wife. Not only that, she was not paying any kind of respect to her husband. On the contrary, she used to insult him by not giving appropriate answer in the presence of family members, and by doing so, she was disreputing the value of the plaintiff in the eye of other family members. Subsequently, the plaintiff came to know that she was also habitual of smoking cigarettes and drinking alcohol. In short, she was possessing all virtutes which were not accepted and approved by the Society.
3.4 On 16.07.2021, the defendant-wife voluntarily went to her parental home without any rhyme or reason by merely stating that if she wishes so, she will come back otherwise not.
3.5 Thereafter, the plaintiff-husband contacted her on telephone, but she declined to talk to him. However, thereafter, somehow the respondent-husband managed to get back the appellant-wife at her matrimonial home with the help of the relatives and the people of the community.
Page 3 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined 3.6 It is also alleged in the suit that the respondent-husband came to know that the appellant-wife had also close intimacy with one Ishant Modi and therefore on 20.07.2021, plaintiff tried to ascertain the said fact from her, but instead of giving proper answer, she started quarrel with him.
3.7 Thereafter, on 22.07.2021, the defendant-wife told to the plaintiff that she does not want to stay with him as her marriage was solemnized against her will and wish as she wants to marry with some other person and then left her matrimonial home. Not only that, thereafter, the defendant- wife also registered a complaint with the Navsari Fatak Police Station against the plaintiff-husband under the provisions of the Domestic Violence Act and demanded divorce from the plaintiff-husband.
3.8 The plaintiff husband preferred the suit before the Family Court at Navsari seeking decree of divorce. The learned Family Court allowed the suit filed by the plaintiff and dissolved the marriage by declaring the marriage between the plaintiff and the defendant as null and void.
3.9 Being aggrieved by and dissatisfied with the said judgment and decree, the appellant-wife has filed the present appeal to challenge the same by raising manifold grounds.
4. Learned advocate Mr. J.F. Mehta who appears on behalf of the appellant-wife has submitted that the impugned judgment and decree passed by the learned Family Court is unjust, unfair and unreasonable and not based upon the sound Page 4 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined principles of law. Learned advocate Mr. Mehta has submitted that an ex-parte judgment and decree was passed by the learned Principal Judge, Family Court at Navsari without being providing an adequate opportunity of hearing to the appellant to lead evidence, to make cross-examination of the witnesses produced by the plaintiff-husband and to confront and contradict the evidences laid by the plaintiff and thereby the valuable right of the appellant-wife to raise and develop her defense had been jeopardized and, therefore, on this sole ground, the impugned judgment and decree is required to be quashed and set aside. Learned advocate Mr. Mehta has submitted that the respondent-husband has filed petition under Section 12 of the Hindu Marriage Act, 1955 for the purpose of declaration of registration of solemnization of marriage as null and void. Learned advocate Mr. Mehta has further submitted that on the strength of the registration of the suit, notice was issued by the family court which was duly served to the appellant-wife. Pursuant to the said notice, on 27.01.2022, the appellant-wife had gone to the concerned family court, however, due to the prevailing situation of spreading deadly virus of Covid-19, the court was found to be closed and upon inquiry, she came to know that the courts were functioning through virtual mode only and, therefore, she was not allowed to enter into the court premises, and on further inquiry about the next date of hearing, it was informed that she will be intimated by the court as and when the situation would normalize and courts shall start functioning regularly. Therefore, she came back to home. Learned advocate Mr. Mehta has also submitted that, thereafter, the Page 5 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined appellant-wife did not receive any further communication from the office of the concerned family court about the next date of hearing and, therefore, she could not appear and attend the court proceedings. In fact, she was at all not aware about the continuation of the proceedings before the family court and, therefore, in her absence trial was proceeded ex-parte and, ultimately, at the end of the day, an ex-prate judgment and decree in favour of the respondent-husband came to be passed on 02.09.2022.
5. Learned advocate Mr. Mehta has submitted that the appellant-wife had filed maintenance proceedings against the respondent-husband before the court at Gandevi by way of preferring Criminal Misc. Application No.236 of 2021 under Section 125 of the Cr.P.C. The respondent-husband used to attend the maintenance proceedings on regular basis, but did not disclose anything about the continuation of the proceedings before the Family Court at Navsari. Learned advocate Mr. Mehta has also submitted that on 03.10.2022, the respondent-husband produced the copy of the judgment and decree passed by the Family Court at Navsari before the Chief Judicial Magistrate at Gandevi, and at that point of time, the appellant-wife came to know about the outcome of the divorce proceedings. Therefore, she immediately contacted her advocate and submitted application to obtain the certified copies of all the documents from the concerned family court. Learned advocate Mr. Mehta has further submitted that he has already supplied the paper-book of the entire set of evidence available on record along with the copy of the Rojkam. Learned Page 6 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined advocate Mr. Mehta has submitted that if the Hon'ble Court would make cursory glance upon the proceedings of the family court, in that event, the entire picture would be crystalized.
6. In such circumstances, referred to above, learned advocate Mr. Mehta prays that there being merit in this appeal the same be allowed and the matter may be sent back to the Trial Court for fresh consideration.
7. On the other hand, this appeal has been vehemently opposed by learned advocate Mr. K.T. Beladiya appearing on behalf of the defendant-husband. He has submitted that the impugned judgment and decree passed by the Family Court is just, fair, reasonable and based upon the sound principle of law. Learned advocate Mr. Beladiya has further submitted that along with the first appeal, the entire set of paper-book has been produced by the appellant-wife wherein copy of the Rojkam has also been annexed. Learned advocate Mr. Beladiya has also submitted that if the Hon'ble Court would go through the contents of the proceedings, in that event, the entire picture would be crystalized. The Principal Judge, Family Court has given ample opportunity to the appellant-wife to raise defense. However, despite the fact that notice issued by the Hon'ble Court was duly served to her, she has chosen not to appear and attend the court proceedings and, therefore, in her absence, the trial was proceeded. Learned advocate Mr. Beladiya has submitted that, in fact, the appellant-wife has filed the maintenance proceedings before the Court of Chief Judicial Magistrate at Gandevi by way of preferring Criminal Misc. Application No.236 of 2021 under Section 125 of the Page 7 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined Cr.P.C. The appellant-wife was regularly attending the said proceedings either by personally remaining present or through her advocate. Therefore, it cannot be said that due to Covid- 19 pandemic restrictions, she could not be able to attend the court proceedings and the said defense raised by the appellant-wife is quite contrary to the facts available on record. Learned advocate Mr. Beladiya has submitted that solely on this ground, the present appeal is required to be dismissed at the threshold.
8. Learned advocate Mr. Beladiya has further submitted that the learned advocate who was representing the appellant-wife had extensively made cross-examination of all the witnesses produced by the respondent-husband in the maintenance proceedings, and copy of the depositions of the said witnesses are also produced by the appellant herself along with the paper-book. Therefore, if the Hon'ble Court would make cursory glance upon the said set of evidence, in that event, it is found out that the arguments canvassed by the learned advocate for the appellant has no legs to stand for a moment because on each and every occasion, they remained present before the court where the maintenance proceeding was going on. Learned advocate Mr. Beladiya has submitted that the copy of the Rojkam is also annexed along with the paper- book and it is found out from the evidence available on record that while passing the impugned judgment and decree, the learned Family Judge has followed and fulfilled all the requisite provisions of the CPC and, therefore, there is no illegality or irregularity committed by the learned Family Judge at the time Page 8 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined of deciding the suit filed by the respondent-husband. Learned advocate Mr. Beladiya has further submitted that despite service of notice, the appellant-wife had chosen not to appear and attend the proceedings continuously and, therefore, the learned Family Judge had left with no other option but to conduct the proceedings ex-parte, and at this stage merely on the ground that the trial was proceeded ex-parte, if the matter is remanded back, in that event, it can be said that undue premium would be paid or to be extended in favour of the person who has not paid any heed to the notice issued by the Hon'ble court.
9. In such circumstances, referred to above, learned advocate Mr. Beladiya prays that there being no merit in this appeal, the same be rejected.
10. Heard the learned advocates appearing for the respective parties.
11. As the issue involved in this matter is in a very narrow compass, and upon a joint request made by the learned advocates for the respective parties to finally dispose of the appeal, we took up the matter for final hearing.
12. Before adverting to the rival submissions canvassed by either side, we would like to mention certain chronological events of factual aspects occurred in the present matter before the Family Court.
13. The respondent-husband has filed the Family Suit under Section 12 of the Hindu Marriage Act on 27.12.2021, seeking a declaration of solemnization of marriage between him and the Page 9 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined appellant-wife as null and void. The said suit was numbered and, thereafter, notice was issued which was made returnable on 27.01.2022. The notice issued by the court was duly served to the appellant-wife. It is mentioned in the Rojkam that as per the guidelines and SOP issued by the Hon'ble Gujarat High Court, the parties and their advocates were not available on virtual mode and, therefore, considering the principles of natural justice, the matter was kept on 11.03.2022. Thereafter, on 11.03.2022, the respondent-husband along with his advocate was present, however, the appellant-wife did not remain present on that day. It is mentioned in the Rojkam that the notice issued by the Hon'ble Court is duly served to the appellant-wife and the matter was kept on 22.04.2022 for filing written statement as well as for the appearance of the appellant-wife. On 22.04.2022, the respondent-husband and his advocate were present, however, the appellant-wife did not remain present. The respondent-husband made an application to try and conduct the proceedings ex-parte and the said application came to be allowed. The matter was then kept on 13.05.2022. On 13.05.2022, again the respondent-husband and his advocate were present and the appellant-wife was not present on that day. "Issues" were framed and matter was kept on 17.06.2022. On 17.06.2022, both the respondent- husband and the appellant-wife did not remain present. The learned advocate for the respondent was present. The matter was at the stage of recording of evidence of the respondent- husband and, therefore, it was kept on 22.07.2022 for recording the evidence of the plaintiff. On 22.07.2022, the respondent-husband and his advocate were present and the Page 10 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined appellant-wife was not present. On that day, evidence was led by submitting examination-in-chief in the form of affidavit in support of the plaint. The documents were exhibited and the matter was kept on 08.08.2022. Once again, on 08.08.2022, the respondent-husband and his advocate remained present but the appellant-wife did not remain present. An application to close the right of the appellant-wife to lead evidence was submitted which was allowed by the Hon'ble Court and the matter was kept for arguments on 29.08.2022. On 29.08.2022, arguments were canvassed and matter was kept on 02.09.2022 for orders and on 02.09.2022, the impugned order came to be passed.
14. Upon perusal of the Rojkam and by going through the above stated factual aspects of the matter, it clearly appears that on the very first date, i.e., on 27.01.2022, the court was functioning on virtual mode as per the guidelines issued by the Hon'ble High Court in the form of SOP. It is clearly stated in the Rojkam that as the litigants as well as their advocates have not remained present, considering the principle of natural justice, the matter is adjourned. The wording employed in the said Rojkam clearly goes on to show that on 27.01.2022, the litigants and advocates were not permitted to physically enter into the court premises and the said date was the first returnable date of the notice which was duly served to the appellant-wife. Therefore, we found substance in the submission of the learned advocate for the appellant as specifically narrated in the memo of the petition that on the very first returnable date, after service of notice, she did Page 11 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined remain present before the court, but could not be permitted to enter in the court premises. Learned advocate Mr. Mehta who appears on behalf of the appellant-wife has also submitted that as per the provisions of the Family Courts Act, party has to submit an application to the concerned court for the purpose of getting permission to engage an advocate, however, the situation was such that she could not be able to enter into the court premises and request the court to permit her to engage an advocate, and in absence of any express order issued by the concerned court, she could not be able to engage an advocate to represent her. Not only that, it is specifically asserted on oath in the petition itself that the appellant-wife was informed that as and when situation would become normal, an intimation would be given to her by the Office by issuing notice mentioning the next date. However, the record itself shows and suggests that thereafter, no second notice was issued. Therefore, the act and action on the part of the appellant-wife is prima facie found as bona fide one. It is the fact on record that the trial was proceeded ex-parte. It is also brought to the notice of this Court that she was regularly attending the court proceedings which was instituted at her instance before the Magistrate Court at Gandevi under Section 125 of the Cr.P.C. for getting maintenance. Therefore, she could very well appear an attend the court proceedings pending before the Principal Judge, Family Court, Navsari as the distance between Navsari and Gandevi is not far away. There is a substance in the said submission, but in fact, the record shows altogether different facts. It is an admitted position that the Principal Judge, Family Court, Navsari had Page 12 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined issued notice to the appellant-wife, making it returnable on 27.01.2022 and the said notice was duly served to the appellant-wife. The Rojkam clearly shows and suggests that on the very first returnable date, the courts were functioning in virtual mode and, thereafter, the appellant-wife did not remain present at a single point of time, but the facts remain that, thereafter, no second notice was issued to the appellant-wife by the office of the Family Court at Navsari. The appellant-wife has stated on oath before this Court that on that day, she was present before the concerned court, but she could not be permitted to enter into the court premises. Not only that, upon inquiry, she was informed that due to Covid-19 pandemic, nobody is allowed to enter into the court premises and as and when the situation would become normal, she will be informed by the office about the next date of hearing. Therefore, under the bona fide belief, she did not attend the proceedings and was under the impression that as and when the matter comes on the board, fresh notice will be issued and she will be informed to remain present before the Court to attend the proceedings. It is also the fact available on record that she was regularly attending the proceedings before the Magistrate Court at Gandevi and as soon as copy of the judgment and decree produced by the respondent-husband in the proceedings before the court at Gandevi, she immediately contacted her advocate and obtained certified copies of all the documents and, thereafter, after taking legal advise from the advocate concerned, she has preferred the present appeal. The entire sequence of events of occurrence clearly goes on to show that whatever facts narrated in the memo of appeal Page 13 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined supports the case of the appellant-wife. Not only that the said facts are also in consonance with the record of the court. Therefore, we are of the opinion that the appeal deserves consideration.
15. At this juncture we would like to put reliance upon certain case laws decided by the Hon'ble Apex Court. The Hon'ble Apex Court, in catena of decisions, has emphasized that every conclusion must be well supported by adequate reasons and if issue is arising that case has not been properly dealt with, same would be a relevant circumstance for remanding the matter back for fresh consideration. Relevant observations contained in the decision delivered by Hon'ble the Apex Court in the case of State of Orissa and others v. Chandra Nandi, reported in (2019) 4 SCC 357, Hon'ble the Apex Court has observed in paragraph 10 as under:
"10. This Court has consistently laid down that every judicial or/and quasi−judicial order passed by the Court/Tribunal/Authority concerned, which decides the lis between the parties, must be supported with the reasons in support of its conclusion. The parties to the lis and so also the appellate/revisionary Court while examining the correctness of the order are entitled to know as to on which basis, a particular conclusion is arrived at in the order. In the absence of any discussion, the reasons and the findings on the submissions urged, it is not possible to know as to what led the Court/Tribunal/Authority for reaching to such conclusion. (See − State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129, Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222, State of U.P. vs. Battan & Ors., (2001) 10 SCC 607, Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs. Dhaniram Luhar, Page 14 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined (2004) 5 SCC 568)."
16. Yet another judgment delivered by Madras High Court since relevant is taken note of by the Court and relevant paragraph-6 is reproduced hereunder:-
"6. In terms of the above provisions, every judgment should contain a concise statement of the case, the points for determination, decision thereon and the reasons for such decision. A judgment which does not contain the bare minimum facts, the point for determination, the evidence adduced and the application of those facts and evidence for deciding the issue would not qualify it to be called as "judgment". The judgment should contain the brief summary of the facts, the evidence produced by the plaintiff in support of his claim and the reasoning of the learned Judge either for decreeing the suit or its dismissal. The Civil Procedure Code does not say that the Court is bound to grant a decree in case the defendant is absent. Judgment means cognitive process of reading a decision or drawing conclusion. Judgment is the basic requirement for a court and it means a decison or conclusion reached after consideration and deliberation. To put it differently, the basics of a judgment are to support by most cogent reasons that suggest themselves the final conclusion at which the Judge has conscientiously arrived."
17. Here in the case on hand, the learned Trial Judge has not discussed anything on facts and circumstances of the case in the impugned judgment and straightway passed an ex-parte order on the basis of evidence produced by the respondent- husband.
18. Considering the peculiar facts of the present case, we are of the opinion that this is a fit case wherein this Court can Page 15 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined exercise its discretionary power as the entire proceedings were conducted ex-parte and the impugned judgment and decree was passed in the absence of the defendant-wife, declaring the marriage as null and void. Without touching the merits and de- merits of the present case, simply on the ground that the entire proceeding were conducted ex-parte, we are inclined to remand the matter back to the concerned trial court to decide it afresh after providing ample opportunity of hearing as well as leading evidence to both the parties.
19. In view of the aforesaid discussion, we are of the opinion that the present appeal deserves to be allowed and the appellant-wife is required to be heard and permitted to lead evidence in her defense.
20. With the above observation and direction, the present first appeal stands allowed. The impugned judgment and decree dated 02.09.2022 passed by the learned Principal Judge, Family Court, Navsari in Family Suit No.137 of 2021 is hereby quashed and set aside and the matter is remanded back to the Court concerned to decide the issue afresh after giving an appropriate opportunity of being heard to the parties. The learned Judge concerned shall decide the matter afresh in accordance with law on its own merits without being influenced by the observation made in the present order, preferably within a period of SIX MONTHS from the date of receipt of copy of this order. Both the parties shall cooperate in the proceedings pending before the learned Judge concerned to conclude it within aforesaid period. It is clarified that this Court Page 16 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023 NEUTRAL CITATION C/FA/924/2023 JUDGMENT DATED: 29/08/2023 undefined has not examined merits or demerits of the case of the appellant.
21. In view of the order passed in the main appeal, the connected civil application does not survive and is disposed of accordingly.
(ASHUTOSH SHASTRI, J) (DIVYESH A. JOSHI,J) VAHID Page 17 of 17 Downloaded on : Sun Sep 17 02:50:43 IST 2023