Bombay High Court
Rajendra S/O Sheshrao Patil vs Sau. Sapna W/O Rajendra Patil on 12 August, 2016
Bench: V.A. Naik
FCA 79/15 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL No. 79/2015
Rajendra s/o Sheshrao Patil,
Aged about 46 years,
Occ.: Business, R/o Ashirwad Medical Stores,
Cement Road, Ashti, Tah. Ashti,
Distt. Wardha. APPELLANT
.....VERSUS.....
Sau.Sapna w/o Rajendra Patil,
Aged about 40 years, Occ.: Nil,
R/o. C/o. Shyamkant K. Raut,
R/o. Usha Nagar, Sainagar, Amravati,
Tah. And Distt. Amravati. RESPONDENT
Shri S.A. Radke, counsel for the appellant.
Shri S.S. Dhengale, counsel for the respondent.
CORAM :SMT.VASANTI A NAIK AND
MRS. SWAPNA JOSHI, JJ.
DATE : 11 TH AUGUST, 2016.
ORAL JUDGMENT (PER : SMT.VASANTI A. NAIK, J.)
The Family Court Appeal is ADMITTED and heard finally with
the consent of the learned counsel for the parties.
By this Family Court Appeal, the appellant-husband
challenges the judgment of the Family Court, Amravati, dated
28.02.2014, allowing the Hindu Marriage Petition filed by the
respondent-wife for restitution of conjugal rights and directing the
appellant to resume cohabitation with the respondent-wife.
FCA 79/15 2 Judgment
2. The respondent-wife had filed a Hindu Marriage petition for
restitution of conjugal rights under Section 9 of the Hindu Marriage Act.
The marriage between the appellant-husband and the respondent-wife
was solemnized on 27.11.2011 as per Hindu rites and custom. The
parties started residing together in the matrimonial house at Ashti. In the
matrimonial house, the parties resided along with the mother, brother
and the wife of the brother of the husband. During the stay of the wife in
the matrimonial house, it is the case of the wife that the husband was
avoiding her company and sleeping in another room. It is pleaded in the
petition filed by the wife that she became aware that the husband had
undergone an operation of his penis due to an accidental injury and,
therefore, he was sleeping in another room. According to the wife,
despite the ill-treatment meted out to her by the husband and his family
members, she resided with the husband. It is pleaded that on
28.10.2011, the husband and his family members quarreled with the wife
and called her brother to ensure that the wife leaves the matrimonial
home. The wife pleaded that she is residing with her uncle in Amravati
after she left the matrimonial home. It is pleaded that she received a
notice from the husband in which false allegations were levelled against
her and the husband had expressed his intention of severing the marital
ties. It is pleaded that the wife replied the said notice. It is pleaded that
on 24.11.2011, the husband called the wife on her cellphone and asked
FCA 79/15 3 Judgment
her not to come to the matrimonial house again, as he did not wish to
cohabit with her. According to the wife, she was compelled to leave the
company of the husband without any fault on her part. The wife,
therefore, sought a decree of restitution of conjugal rights.
3. The husband filed the written statement and denied the claim
of the wife. Every allegation that was made by the wife in the Hindu
marriage Petition was specifically denied by the husband. During the
pendency of the petition in the Family Court, under the provisions of
Section 24 of the Hindu Marriage Act, the husband was directed to pay a
sum of Rs.2,500/- per month to the wife towards interim maintenance.
The husband defaulted in payment of the said amount and, therefore, the
defence of the husband was struck off. The wife examined herself and
since the defence of the husband was struck of, the husband was not able
to prove his case. The Family Court relied on the evidence of the wife
that went unchallenged and granted a decree of restitution of conjugal
rights in favour of the wife. The said order is challenged by the husband
in this Family Court Appeal.
4. Shri Radke, the learned counsel for the appellant-husband,
submitted that the Family Court ought to have granted an opportunity to
the husband to clear the arrears of maintenance and ought not have
FCA 79/15 4 Judgment
struck off the defence of the husband. It is stated that in view of the
orders passed by this Court, the husband had deposited the entire arrears
of maintenance and there are no dues in respect of maintenance. It is
stated that in the circumstances of the case, an opportunity may be
granted to the husband to defend the petition filed by the wife for
restitution of conjugal rights. It is stated that by taking a lenient view in
the matter, this Court may remand the matter to the Family Court for a
fresh decision in the petition filed by the wife after considering the
written statement of the husband and after permitting him to examine
himself and cross-examine the wife and her witnesses, if necessary. It is
stated that the Family Court did not grant any opportunity to the husband
to deposit the arrears of maintenance and decided the Hindu Marriage
Petition by striking off the defence of the husband.
5. Shri Dhengale, the learned counsel for the respondent,
submitted that the Family Court was justified in striking off the defence as
the husband had not deposited the maintenance regularly during the
pendency of the Hindu Marriage Petition. It is submitted that after the
defence was struck off, no steps were taken by the husband for setting
aside the order. It is, however, fairly admitted by the learned counsel
that during the pendency of this Family Court Appeal, the entire arrears
of maintenance have been cleared by the husband and there are no dues.
FCA 79/15 5 Judgment
It is stated that if this Court is inclined to remand the matter to the Family
Court, this Court may direct the Family Court to decide the same as
expeditiously as possible.
6. On hearing the learned counsel for the parties and on a
perusal of the Record & Proceedings, it appears that the following points
arise for determination in this Family Court Appeal.
I)
Whether the order passed by the Family Court
is liable to be set aside ?
II) Whether an opportunity needs to be granted to the husband
to defend the petition filed by the wife?
III) What order?
7. On a perusal of the original Record & Proceedings, it appears
that the Family Court Appeal decided the matter in favour of the wife by
striking off the defence of the husband as he had not paid the interim
maintenance during the pendency of the petition. It is stated on behalf of
the husband that due to financial constraints, the husband was not able to
pay the said amount and at least one opportunity ought to have been
granted by the Family Court to the husband to pay the said amount. In
FCA 79/15 6 Judgment
the circumstances of the case, though we do not find that the Family
Court has committed any error in deciding the matter after striking off the
defence of the husband, by taking a lenient view, since it is a matrimonial
matter, we are inclined to remand the matter to the Family Court so that
the husband may defend the petition filed by the wife for the restitution
of conjugal rights. Since the wife has levelled serious allegations against
the husband in the petition, it would be all the more necessary to grant an
opportunity to the husband to defend the case. Also, the husband has
shown his bona fides by clearing the entire dues that were liable to be
paid to the wife towards interim maintenance, during the pendency of the
Family Court Appeal. Hence, as requested on behalf of the learned
counsel for the appellant, by taking a lenient view on the matter, we are
inclined to remand the matter to the Family Court, more so, when the
counsel for the respondent has asked this Court to pass an appropriate
order and issue a direction to the Family Court to decide the matter as
expeditiously as possible.
8. Hence, for the reasons aforesaid, the Family Court Appeal is
partly allowed. The judgment of the Family Court, dated 28.02.2014 is
hereby set aside. The matter is remanded to the Family Court for a fresh
decision in the petition filed by the wife for restitution of conjugal rights,
after considering the defence of the husband and granting the parties to
FCA 79/15 7 Judgment
tender evidence, if necessary. We make it clear that it would be necessary
for the husband to deposit the monthly maintenance in the Family Court,
till the Family Court decides the Hindu Marriage Petition filed by the
wife. We request the Family Court to decide the petition filed by the wife
within six months. In the circumstances of the case, there would be no
order as to costs.
JUDGE ig JUDGE
APTE
FCA 79/15 8 Judgment
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