Bombay High Court
Mayank Jaigopal Gupta vs Mrs. Neha Mayank Gupta on 17 March, 2016
Bench: R.M. Savant
(910)-WP-792-16.doc
THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.792 OF 2016
Mayank Jaigopal Gupta, ]
Aged 30 years (DOB: 24th Jan 1985), ]
Profession: Presently residing at ]
24/A, Chemin De La Greube, ]
1214-Vernier, Geneva, Switzerland ].. Petitioner
Versus
Mrs. Neha Mayank Gupta, ]
having maiden name ]
Miss Neha Suresh Goel, ]
Age 20 years (DOB: 14th Nov. 1987), ]
Profession: Presently residing at ]
C-20-0-1, Palm Beach CHS, Sector-4, ]
Nerul, Navi Mumbai-400 706 ].. Respondent
Mr. Ishwariprasad Bagaria, for the Petitioner.
Mr. Siddharth Murarka i/by Law Chamber of Siddharth Murarka, for
the Respondent.
CORAM : R.M. SAVANT, J.
DATE : 17th MARCH 2016
ORAL JUDGMENT
1. Rule, having regard to the challenge raised in the above
Petition made returnable forthwith and heard.
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2. The above Petition takes exception to the order dated
23.12.2015 passed by the Learned Judge of the Family Court, Mumbai, by
which order, the application Exh.11 filed by the Petitioner came to be
rejected.
3. It is not necessary to burden this order with unnecessary
details considering the narrow controversy involved. The Respondent
herein has filed Marriage Petition No.A264 of 2014 for annulment of the
marriage between her and the Petitioner herein which took place on
01.08.2013. The annulment of the marriage is sought inter-alia on the
grounds mentioned in the said Marriage Petition. For the purposes of
adjudication of the instant Petition, it is not necessary to go into the said
aspect. The Petitioner herein claims to be a citizen of Switzerland and is
residing in Geneva. There is no dispute about the fact that a copy of the
said Marriage Petition was served upon the Petitioner. It seems that after
the copy was served the Respondent addressed a letter to the Family Court
that he be furnished with a copy of the Marriage Petition translated in
French as per the Geneva Convention. Be that as it may, the Marriage
Petition was proceeded with and in view of the fact that the Respondent
did not appear in the matter. The Learned Judge of the Family Court it
seems has passed an order to proceed an ex-parte against the Petitioner on
10th October 2015 (as per the Learned Counsel appearing for the
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Respondent). The Petitioner filed the instant application Exh.11 for being
permitted to be represented by advocate. It is required to be noted that the
Respondent herein is represented by a lawyer after permission was
granted to her in that behalf. In the said application the Petitioner has
stated that he does not have adequate legal knowledge and that there is
possibility of question of law arising and that he would not be in a position
to conduct the said case on his own adequately. It is therefore prayed that
he may be permitted to appoint the advocates mentioned in the said
application. The said application Exh.11 is dated 08.12.2011 which was
affirmed before the concerned authority in Geneva and sent back and
thereafter filed on 23.12.2015 in the Family Court. The said application
came to be rejected by the Trial Court i.e. Learned Judge of the Family
Court who has endorsed on the same which endorsement is to the
following effect "Respondent absent hence rejected". It is the said order
which is taken exception to by way of the above Petition. The Petitioner
vide clause (b) seeks relief that the written statement of the Petitioner be
taken on record.
4. However, in so far as the impugned order is concerned, it was
the submission of the Learned Counsel for the Petitioner Mr. Bagaria that
since the Respondent wife is represented by an advocate, the application
filed by the Petitioner was required to be allowed as obviously the
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Petitioner is not competent to conduct the matter especially when the
Respondent is represented by advocate. The Learned Counsel sought to
place reliance on Rule 37 of the Family Court Rules under which such
permission according to him can be granted.
5. Per contra, the Learned Counsel appearing for the Respondent
Mr. Murarka would submit that since the Petitioner has kept away from
the proceedings, the order passed by the Trial Court was warranted as an
application could only be filed if the party is present in Court. The Learned
Counsel sought to draw this Court's attention to the absence of the
Petitioner in various other proceedings which are pending between the
parties i.e. proceedings filed under Section 498-A and the proceedings
under the Domestic Violence Act.
6. Having heard the Learned Counsel for the parties, I have
considered the rival contentions. In the instant case, as indicated above,
the order to proceed ex-parte against the Petitioner was passed sometime
in October 2015. Thereafter the application Exh.11 was moved on
23.12.2015 by the Petitioner seeking permission to be represented by
advocate. In my view, the Trial Court has erred in rejecting the application
only on the ground that the Petitioner was absent. The application as
indicated above has been affirmed before the appropriate authority in
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Geneva and therefore the Trial Court was required to consider the
application notwithstanding the fact that the Petitioner was absent. It is
required to be noted that the Respondent wife is represented by advocate
and therefore it was all the more necessary to permit the Petitioner to be
represented by advocate. The Learned Counsel for the Respondent herein
has not been able to point out any provision wherein an application duly
sworn in a foreign country could not be filed in the Courts in India in the
absence of the party. In my view, therefore, the impugned order dated
23.12.2015 is required to be quashed and set aside and is accordingly
quashed and set aside. The application Exh.11 would stand allowed.
7. The Petitioner i.e. the Respondent in the Marriage Petition
No.A264 of 2014 would be entitled to be represented by
advocate/advocates. In so far as the Petitioner's prayer for the written
statement to be taken on record is concerned, it seems that on the same
date i.e. on 23.12.2015 an application came to be filed by the Petitioner
for taking the written statement on record, but it seems that the said
application was not accepted by the Learned Judge of the Family Court, in
view of the fact that the Respondent was not permitted to be represented
by advocate.
8. In my view, therefore, it would be just and proper to direct
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the Learned Judge of the Family Court to take the application of the
Petitioner for taking his written statement on record and thereafter decide
the same in accordance with law. Needless to state that the contentions of
the parties in that respect are kept open for being urged before the Family
Court. The Petition is allowed to the aforesaid extent. Rule is accordingly
made absolute.
9. Parties to act on a copy of this order duly authenticated by the
Court Shirestedar.
[R.M. SAVANT, J]
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