Bombay High Court
Sau. Reshma Sudhakar Ambhore vs Sudhakar Shyamrao Ambhore on 3 October, 2016
Bench: V.A. Naik
fca46.16.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.46/2016
APPELLANT: Sau. Reshma Sudhakar Ambhore,
Aged about 30, Occu. Service,
r/o c/o Prakash Akaram Jamnik,
Near Z.P. School, Shivni, Tq. and Distt. Akola.
...VERSUS...
RESPONDENT : Sudhakar Shyamrao Ambhore,
Aged about 35 years, Occu. Service,
r/o 28, Sanket Colony, Near Tapovan Gate,
Area of Amravati University, Camp, Amravati,
Tq. and Distt. Amravati.
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Shri A.R. Deshpande, Advocate for appellant
Shri C.R. Sharma, Advocate for respondent
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CORAM : SMT. VASANTI A NAIK, AND
KUM. INDIRA JAIN, JJ.
DATE : 03.10.2016
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
Heard. The family court appeal is admitted and heard
finally with the consent of the learned Counsel for the parties as the
record and proceedings are received.
By this family court appeal, the appellant - wife has
challenged the judgment of the family Court, Amravati dated 21.4.2014
allowing the petition filed by the respondent - husband under Section 9
of the Hindu Marriage Act for a decree of restitution of conjugal rights.
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The appellant - wife and the respondent - husband
(hereinafter referred to as "the wife" and "the husband" respectively for
the sake of brevity) were married at Akola on 9.6.2009 as per the Hindu
rites and customs. It is the case of the wife that the husband treated her
with cruelty and therefore, she had initiated the proceedings against him
for a decree of divorce. Similarly, the husband desired to stay with the
wife under one roof and therefore, he filed the petition under Section 9 of
the Hindu Marriage Act for restitution of conjugal rights. In the
proceedings filed by the husband for restitution of conjugal rights, the
family Court framed the issues and the husband tendered his evidence on
affidavit. Since the husband was not cross-examined on behalf of the wife
for long, an order to proceed against the wife without cross-examination
of the husband, was passed. After the said order was passed, the husband
tendered a pursis closing the evidence on his side. Thereafter, the matter
was fixed for tendering of the evidence of wife on more than a couple of
occasions. Since the wife remained absent and did not tender her
evidence, an application was moved by the husband for fixing the case for
arguments as the wife was not desirous of tendering the evidence. The
said application was allowed by the family Court on 21.3.2014 and the
matter was fixed for arguments. On the same day, the wife moved an
application for setting aside the order of 'no cross', as also the order of
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fixing the matter for arguments. The family Court allowed the application
for recalling the order of 'no cross', dated 17.9.2013, but rejected the
prayer made by the wife for setting aside the order that was passed on
21.3.2014 of fixing the case for arguments without permitting the wife to
tender evidence. The matter proceeded and after the arguments were
heard, the family Court by the judgment, dated 21.4.2014 allowed the
petition filed by the husband for restitution of conjugal rights. The wife
has challenged the judgment in this family court appeal.
Shri A.R. Deshpande, the learned Counsel for the wife
submitted that the family Court was not justified in accepting the
evidence of the husband as gospel truth on an assumption that the
husband was not cross-examined by the wife. It is stated that the family
Court has erroneously observed that there is no cross-examination of the
husband on behalf of the wife and hence, the statements made by him in
the evidence on affidavit are true and correct. It is submitted that the
decision of the family Court is based on a wrongful assumption of a
material fact in regard to the cross-examination of the husband. It is
submitted that the family Court has committed a serious error in rejecting
the application filed by the wife for setting aside the order, dated
21.3.2014, fixing the case for arguments. It is submitted that when the
wife was permitted to cross-examine the husband by setting aside the
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order of 'no cross', there was no propriety on the part of the family Court
in rejecting the application made by the appellant for setting aside the
order, dated 21.3.2014, fixing the petition for arguments, without
permitting the wife to tender evidence. It is stated that no reasons much
less any cogent reasons are recorded by the family Court while rejecting
the application made by the wife for setting aside the order of fixing the
matter for arguments.
Shri Sharma, the learned Counsel for the husband fairly
admits that though the husband was cross-examined on behalf of the wife,
the family Court has erroneously proceeded to decide the petition filed by
the husband on a wrongful assumption that the husband was not
cross-examined and the evidence of the husband remained unchallenged.
It is submitted that since the wife was not desirous of tendering her
evidence, the family Court has rightly rejected her application for setting
aside the order dated 21.3.2014, fixing the case for arguments without
permitting the wife to tender the evidence. It is stated that if the Court is
desirous of remanding the matter to the family Court, the family Court
may be directed to decide the petition within a time frame.
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 family court appeal.
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(1) Whether the family Court was justified in
passing a decree of restitution of conjugal rights in favour of the
husband by accepting his evidence on the ground that he was
not cross-examined ?
(2) Whether the judgment of the family Court
calls for interference ?
(3) What order ?
On a perusal of the original record and proceedings, it
appears that the husband was cross-examined on behalf of the wife after
the family Court set aside the order of 'no cross' of the husband on
21.3.2014. On 25.3.2014, the family Court had allowed the application
filed by the wife for setting aside the order of 'no cross' of the husband.
After the order of 'no cross' was set aside by the family Court on
25.3.2014, the Counsel for the wife had cross-examined the husband. The
family Court erroneously assumed that the husband was not
cross-examined on behalf of the wife and therefore, accepted the evidence
tendered by him on affidavit, as gospel truth. The family Court
erroneously held that the evidence of the husband remained unchallenged
as he was no cross-examined by the wife. Since the judgment of the family
Court is based on a wrongful assumption on an extremely relevant fact
and since the family Court has passed the decree in favour of the husband
without considering the evidence of the husband in his cross-examination,
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the judgment of the family Court cannot be sustained.
Apart from committing the aforesaid mistake, the family
Court has further erroneously rejected the application filed by the wife on
25.3.2014 without recording any cogent reasons. The family Court only
observed that since the wife did not present herself in the Court on some
of the earlier dates of hearing, the application was liable to be rejected.
The family Court should have allowed the application filed by the wife for
setting aside the order dated 21.3.2014, fixing the case for arguments,
specially when the family Court had allowed the application filed by the
wife for setting aside the order of 'no cross' of the husband and permitted
the wife to cross-examine the husband. When the order of 'no cross' of the
husband was set aside, we fail to gauge as to why the family Court did not
allow the other application filed by the wife for setting aside the order of
fixing the petition for arguments without permitting the wife to tender her
evidence. It was necessary for the family Court to have allowed both the
applications simultaneously and permitted the wife to cross-examine the
husband and also to lead her evidence. We find that the family Court has
committed a serious error in assuming that the husband was not
cross-examined and in rejecting the application filed by the wife for
setting aside the order of fixing the petition for arguments.
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Hence, for the reasons aforesaid, the family court appeal is
partly allowed. The judgment of the family Court, dated 21.4.2014 is
hereby quashed and set aside. The family Court is directed to decide the
petition filed by the husband afresh on merits after permitting the parties
to tender evidence, within a period of eight months. The parties
undertake to appear before the family Court on 17.10.2016 so that notice
to the parties could be dispensed with. The wife is directed to co-operate
in the proceedings, so that they could be decided within the time frame.
In the circumstances of the case, there would be no order as
to costs. The record and proceedings may be remitted to the family Court
at the earliest.
JUDGE JUDGE
Wadkar
fca46.16.odt
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 : 06/10/2016
