Bombay High Court
Sau. Smita W/O. Shashikant Bagul vs Shashikant S/O. Shyam Bagul on 24 August, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.19/2016
APPELLANT: Sau. Smita w/o Shashikant Bagul
(on R.A.) Aged about 32 years, Occ. : Household
R/o C/o Bhimrao Dhanekar Dwarka Nagar,
Behind Ambedkar School, Bhusawal, Tah. Bhusawal,
Distt. Jalgaon.
...VERSUS...
(on R.A.)
RESPONDENT : Shashikant s/o Shyam Bagul
Aged about 39 years, Occ. : Service
R/o 201, 2nd Floor, Navdurga Apartment,
Parvati Nagar, Ajni, Nagpur.
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Shri S.D. Chopde, Advocate for appellant
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CORAM : SMT. VASANTI A NAIK, AND
KUM. INDIRA JAIN, JJ.
DATE : 24.08.2016
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
None appears on behalf of the respondent, though the
respondent was put to notice by our order dated 5.4.2016, that the appeal
could be admitted and heard finally at the stage of admission and the said
notice is duly served on the respondent. Since none had appeared on
behalf of the respondent on 22.8.2016, we had adjourned the family court
appeal for today so as to grant an opportunity to the respondent to defend
the family court appeal. However, none appears on behalf of the
respondent today also.
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The family court appeal is Admitted and heard finally as a
notice of final hearing is duly served on the respondent and the appellant
has only sought a remand of the matter to the family Court as the decree
of divorce is passed against the appellant without granting an opportunity
to the appellant to defend the petition.
The marriage of the appellant - wife (hereinafter referred
to as the wife for the sake of convenience) and the respondent - husband
(hereinafter referred to the husband) was solemnized on 26.4.2009 as per
the Buddhist rites and customs. The parties started residing together in
the matrimonial home at Nagpur. It is the case of the husband in the
Hindu Marriage Petition filed by him for a decree of divorce that on the
second day of the marriage, the husband realized that the wife was not
happy with the relationship and did not like the surroundings, the locality
as also the relatives of the husband. It is pleaded that the wife was not
interested in performing her day-to-day duties and work. It is pleaded that
the wife used to tell the husband that he is a labourer belonging to the
orthodox family and his views did not match with her views. It is pleaded
that the wife taunted the husband as he did not possess an impressive
personality. The husband pleaded that the wife always compared the
facilities that were available to her in her parental home and the facilities
that were available in the matrimonial home. It is pleaded that in Diwali
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the wife went to reside in her parental home and refused to join his
company without any reasonable cause.
The wife denied the claim of the husband by filing the
written statement. The wife denied all the adverse allegations levelled
against her and pleaded that the husband used to say that his mother
used to ask him as to how could he perform the marriage with a mad,
blackish girl. It is pleaded by the wife that the husband was behaving with
her with cruelty and was pressurizing her for divorce. It is pleaded that
the husband taunted her and said that even a dog is better than her. It is
pleaded that the husband was of suspicious nature and he suspected that
the wife had an affair, for which a DNA test would be necessary. It is
pleaded that the husband used to taunt her for not gifting articles of good
quality during the wedding and used to pressurize her for bringing a sum
of Rs.50,000/-. It is pleaded that the husband quarreled with her mother
on 19.10.2009 and after demanding a sum of Rs.1,00,000/- drove the
wife out of the matrimonial home. The wife sought for the dismissal of
the Hindu Marriage Petition.
Though the parties were referred to the Marriage
Counsellor, there was no conciliation. The husband filed an affidavit in
lieu of evidence in examination-in-chief. The husband entered into the
witness box to state that the contents in the affidavit are true and correct.
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The husband was, however, not cross-examined on behalf of the wife as
her Counsel was absent. There was no cross-examination of the husband
and the family Court, on an appreciation of the evidence on affidavit filed
by the husband, granted a decree of divorce after holding that the wife
had treated him with cruelty. The judgment of the family Court is
challenged by the wife in this family court appeal.
Shri Chopde, the learned Counsel for the wife submitted
that the wife resided at Bhusawal, which is 450 km. away from Nagpur
and the Counsel for the wife, failed to inform the wife that she was
required to remain present on the stipulated dates for tendering her
evidence. It is stated that the Counsel for the wife did not remain present
for the cross-examination of the husband and the husband was, therefore,
not cross-examined. It is submitted that the wife is made to suffer a
decree of divorce in view of the fault on the part of her Counsel. It is
submitted that it was incumbent on the part of the Counsel to have
informed the wife about the important dates of hearing of the matter
before the family Court so that the wife would have remained present for
tendering the evidence. It is submitted that it is well settled that a client
should not suffer for the mistake of his Counsel and hence, by taking a
lenient view in the matter this Court may set aside the judgment of the
family Court and remand the matter to the family Court for a fresh
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decision on merits after granting an opportunity to the wife to cross-
examine the husband and tender her evidence. It is stated that the
subsequent conduct on the part of the husband would prove that the
husband has secured the decree of divorce against the wife by
misconducting himself. It is stated that in the proceedings filed by the
wife under Section 125 of the Code of Criminal Procedure, the husband
had appeared and before the Mediator the husband had made a statement
that he had started residing with the wife and was ready to live with her
and hence, by accepting the said statement, the application filed by the
wife under Section 125 of the Code of Criminal Procedure bearing
Criminal M. Application No.402/2010 was disposed of. The learned
Counsel relied on the order below Exh.1 in Criminal M.A. No.402/2010 to
substantiate his submission that the husband and the wife remained
present in the Court of Judicial Magistrate First Class, Bhusawal on
12.12.2014 i.e. after the passing of the judgment by the family Court and
it is admitted by the husband before the Court that the parties have
decided to reside together. It is stated that after recording the aforesaid
statements in the proceedings under Section 125 of the Code of Criminal
Procedure, the Court disposed of the matter in terms of the statement
made on behalf of the parties that they had decided to reside together. It
is stated that the said statement on the part of the husband was
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mischievous as the husband did not permit the wife to stay in the
matrimonial home even for a day and the said statement was made only
with a view to ensure that the proceedings filed by the wife under Section
125 of the Code of Criminal Procedure are disposed of. It is stated that in
the circumstances of the case, this Court may remand the matter to the
family Court for a fresh decision on merits.
On hearing the learned Counsel for the appellant - wife, it
appears that the following points arise for determination in this family
court appeal.
(1) Whether the judgment of the family Court
is liable to be set aside ?
(2) Whether the matter is liable to be
remanded to the family Court for a fresh decision on merits ?
(3) What order ?
On a perusal of the original record and proceedings, we find
that neither the wife nor her Counsel remained present before the family
Court on several dates of hearing. The cause title in the Hindu Marriage
Petition filed by the husband shows that the wife is a resident of
Bhusawal, which is stated to be at a distance of 450 km. from Nagpur. In
the absence of any denial to the statement made on behalf of the wife, it
would be necessary to believe the case of the appellant - wife that the
Counsel for the wife did not inform her about the important dates of
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hearing in the Hindu Marriage Petition. On the day when the husband
entered into the witness box for cross-examination, the Counsel for the
wife was not present and the cross-examination could not be conducted.
It would be necessary to believe the case of the wife that the Counsel for
the wife did not inform the wife that it was necessary for her to remain
present in the Court for tendering her evidence and in the absence of any
such intimation, the wife did not present herself in the family Court for
tendering her evidence as well as the evidence of her witnesses. As rightly
submitted on behalf of the wife, it is well settled that a client should not
suffer for the mistake of his Counsel. We find that in the circumstances of
the case, since the wife was residing far away from Nagpur, an
opportunity needs to be granted to the wife for defending the Hindu
Marriage Petition filed by the husband for a decree of divorce. It would be
necessary to hold so, in view of the subsequent development, whereby the
husband had agreed before the Judicial Magistrate First Class on
12.12.2014, in the proceedings filed by the wife under Section 125 of the
Code of Criminal Procedure that the parties had decided to reside
together and despite the said statement, the husband did not allegedly
permit the wife to enter into the matrimonial house. We find that great
prejudice is caused to the wife, in view of the ex parte decree of divorce,
specially after considering the order below Exh.1 in Criminal
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M.A. No.402/2010, dated 12.12.2014. In the circumstances of the case, it
would be necessary to grant an opportunity to the wife to cross-examine
the husband and also tender the evidence on her side.
Hence, for the reasons aforesaid, the family court appeal is
partly allowed. The judgment of the family Court, dated 24.3.2014 is
hereby set aside. The matter is remanded to the family Court for a fresh
decision in the Hindu Marriage Petition filed by the husband for a decree
of divorce after granting an opportunity to the wife to cross-examine the
husband and also tender her evidence. The family Court may also
consider permitting the wife to amend the pleadings, in view of the
subsequent development, of which we have made a mention in this
judgment. The record and proceedings may be remanded to the family
Court at the earliest.
In the circumstances of the case, there would be no order as
to costs.
JUDGE JUDGE
Wadkar
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C E R T I F I C A T E
I certify that this judgment uploaded is a true and correct
copy of original signed judgment.
Uploaded by : S.S. Wadkar, P.S. Uploaded on : 29/08/2016
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