Sandhya Arvind Hatwar vs Arvind Keshavrao Hatwar
2017 Latest Caselaw 1623 Bom

                                                                                                              fca.75.16

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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT NAGPUR, NAGPUR.
                                            ...

FAMILY COURT APPEAL NO. 75/2016

Sandhya Arvind Hatwar Aged about 33 years, occu: Household R/o Sonia Gandhi Nagar, Infront of Power House Tulshibag, Mahal, Nagpur. ..APPELLANT

v e r s u s

Arvind Keshavrao Hatwar Aged about 33 years, occu: Business (wrongly written as Labour) R/o K.D.K. College Road, Beside Shiv Mandir Rajiv Gandhi Nagar, Nandanvan Zopadpatti, Nagpur. ..RESPONDENT

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Mr. Ashok Raghute, Advocate for the appellant Ms. Shruti Najbile, Advocate for the respondent ...........................................................................................................................

                                                    CORAM:    SMT. VASANTI  A. NAIK &
                                                                   MRS . SWAPNA JOSHI, JJ
                                                                                         . 
                                                    DATED :       11th April, 2017

ORAL JUDGMENT: (PER SMT. VASANTI A. NAIK, J.)

1. The Family Court Appeal is ADMITTED and heard finally at the

stage of admission with the consent of the learned counsel for the parties, after

perusing the Record & Proceedings.

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2. By this Family Court Appeal, appellant-Sandhya (hereinafter

referred to as 'Sandhya' for the sake of convenience) has challenged the

judgment of the Family Court, dated 29.04.2015 declaring that Sandhya is not

the legally-wedded wife of respondent-Arvind (hereinafter referred to as

'Arvind'). Sandhya has also challenged the order of the Family Court rejecting

an application filed by Sandhya for setting aside the ex-parte judgment and

decree, dated 30.04.2015.

3. Arvind had filed a petition under Section 7 of the Family Courts

Act for a declaration that Sandhya is not his wife. It was the case of Arvind

that Sandhya was the legally-wedded wife of Prakash Tambade and the

marriage between Sandhya and Prakash was subsisting on the date of filing of

the petition for declaration. It was the case of Arvind that Sandhya was

married to Prakash on 29.04.2008 and the marriage between Sandhya and

Prakash was not dissolved when the petition was filed. Sandhya had also filed

a complaint against Arvind in the police station for an offence punishable

under Section 498-A of the Penal Code and the case was pending in the Court.

It was pleaded that though a settlement-deed was executed before a Notary on

10.12.2012 that the marriage between Sandhya and Prakash was dissolved,

the said settlement-deed is not valid and the marital ties between Sandhya and

Prakash subsist. During the pendency of the petition filed by Arvind in the year

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2013, it appears that a decree of divorce was passed by the Family Court with

the consent of Sandhya and Prakash.

4. Sandhya filed the written statement and denied the case of

Arvind. Sandhya pleaded that she was living with Arvind as his wife after

securing a divorce from Prakash. According to Sandhya, the petition filed by

Arvind was not tenable. It was pleaded that Sandhya had conceived as a result

of the relationship between Arvind and Sandhya and she was admitted in the

Government Medical College and Hospital, by name, Mrs.Sandhya Arvind

Hatwar. Sandhya pleaded that Sandhya and Arvind had resided together for a

considerable period as husband and wife and the petition filed by Arvind was

liable to be dismissed.

5. On the aforesaid pleadings of the parties, the Family Court

framed the issues. Arvind examined himself and closed the evidence on his

side. Sandhya did not examine herself and did not tender any evidence. On

an appreciation of the material on record, specially the fact that the marriage

between Sandhya and Prakash was not dissolved till 11.06.2014, when a

decree of divorce was passed by consent, the Family Court held that Arvind

was entitled to the declaration as claimed in the petition filed by him in the

year 2013, as Sandhya and Arvind could not have married when the marital

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relationship between Sandhya and Prakash was in subsistence till 11.06.2014.

On the aforesaid short ground, the Family Court held that Sandhya was

precluded from saying that she was the legally-wedded wife of Arvind when

the petition was filed by him. The declaration as sought by Arvind was granted

by the Family Court by the judgment, dated 29.04.2015.

6. After the judgment was passed, Sandhya filed an application for

setting aside the ex-parte judgment and order dated 29.04.2015. Sandhya

stated that though the petition filed by Arvind was fixed for 24.04.2015 when

she perused the Daily Board for the said date, she did not find the mention of

the petition being fixed for hearing on that day and the petition was found in

the Daily Board of the previous day ie, 24.04.2015. Sandhya stated that on

30.04.2015, when Sandhya went to the Family Court to mark her presence,

she realized that the petition filed by Arvind was allowed and the declaration

as sought by him, was granted. The application filed by Sandhya was rejected

by the order, dated 04.10.2016. The judgment of the Family Court, as also the

order dated 04.10.2016 are challenged in this Family Court Appeal.

7. Shri Raghute, the learned counsel for Sandhya, submitted that

the Family Court was not justified in rejecting the application filed by Sandhya

for setting aside the ex-parte judgment and order. It is stated that when

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Sandhya and her counsel went to the Family Court on 24.04.2015, it was

realized that their matter was listed on the earlier day, ie, 23.04.2015 and,

hence, Sandhya did not get an opportunity to tender her evidence on affidavit.

It is stated that the Family Court was not justified in rejecting the application

filed by Sandhya by holding that Sandhya was not diligent in defending the

petition filed by Arvind. It is stated that the declaration, as sought by Arvind is

wrongfully granted though Sandhya was lured by Arvind to marry him. It is

submitted that in the circumstances of the case, an opportunity needs to be

granted to Sandhya to defend the case filed by Arvind.

8. Mrs. Najbile, the learned counsel for Arvind, has supported the

judgment of the Family Court, dated 29.04.2015 as also the order rejecting the

application for setting aside the ex-parte judgment. It is submitted that the

matter was fixed for evidence of Sandhya from time to time but, Sandhya had

failed to tender evidence. It is submitted that though the matter was fixed for

evidence of Sandhya on 20.02.2015, 19.03.2015, 13.04.2015, Sandhya had

failed to lead the evidence. It is stated that when the matter was listed for

argument on 24.04.2015, Sandhya did not make any effort to seek permission

to either tender evidence or to argue the matter. It is submitted that when the

matter was fixed on 23.04.2015, neither Sandhya nor her counsel appeared in

the Court on a specious plea that they were not aware about the said date of

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hearing and that the matter was fixed for 24.04.2015. It is submitted that the

Family Court has rightly held that if Sandhya and her counsel had attended the

Court on 24.04.2015 and had become aware that the arguments were heard

on the previous date, ie, 23.04.2015, Sandhya should have made an

application on the said date seeking permission to adduce evidence or to hear

the arguments on her behalf by taking the case on Board. It is submitted that

in the circumstances of the case, the judgment and the order may not be set

aside.

9. On hearing the learned counsel for the parties, it appears that the

following points arise for determination in this Family Court Appeal;

I) Whether Arvind was entitled to a declaration that Sandhya was not his

legally wedded wife?

II) Whether the Family Court was justified in rejecting the application filed

by Sandhya for setting aside the ex-parte decree?

III) What order?

10. To answer the aforesaid points for determination, it would be necessary

to consider the Record & Proceedings. The pleadings of the parties are very

short. Arvind has pleaded that Sandhya is not his legally-wedded wife as

Sandhya was married to Prakash in the year 2008 and the marriage between

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Sandhya and Prakash was subsisting when he filed the petition for declaration

in the year 2013. Arvind had also stated that since the marriage between

Sandhya and Prakash was not dissolved till he filed the petition for

declaration, Sandhya could not have claimed to be a legally-wedded wife of

Arvind. Though Prakash was joined as a party-respondent to the petition filed

by Arvind, he did not put in his appearance. Sandhya had filed a written

statement and pleaded that she lived with Arvind as his wife and at the time of

her pregnancy, she had posed herself as 'Mrs.Sandhya Arvind Hatwar' and

Arvind had not objected to the same. Sandhya pleaded that she lived with

Arvind for long, as his wife and the marriage between Sandhya and Prakash

was dissolved by a settlement-deed. The Family Court, however, considered

the certified copy of the judgment in Family Court Appeal No.467/2013, in

which the Family Court had passed a consent decree, thereby dissolving the

marriage between Sandhya and Prakash, on 11.06.2014. The certified copy of

the judgment in the proceedings between Sandhya and Prakash was

considered by the Family Court and rightly so, to hold that the marriage

between Sandhya and Prakash was dissolved only on 11.06.2014 and, before

that date, she could not have married with Arvind. The Family Court,

therefore on an appreciation of the material on record, granted a declaration,

as prayed by Arvind that Sandhya was not his legally-wedded wife.

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11. We do not find any infirmity in the judgment of the Family Court

dated 29.04.2015, so as to interfere with the same. Since the marriage

between Sandhya and Prakash was dissolved by a decree of divorce by consent

on 11.06.2014, she could not have married Arvind, as claimed by her before

that date. After the judgment was rendered in the proceedings filed by Arvind

in the petition filed under section 7 of the Family Courts Act for the declaration

that Sandhya is not his legally-wedded wife, Sandhya filed an application

for setting aside the ex-parte decree. The said Application is, however, rejected

by the order dated 4.10.2016. It is necessary to note that though the matter

was a short one and though on several dates of hearing the matter was fixed

for adducing the evidence of Sandhya, Sandhya did not file the evidence on

affidavit. Sandhya had failed to lead her evidence on 23.02.2015, 19.03.2015,

27.03.2015 and 13.04.2015. Though the Court was not available on a couple

of dates of hearing, there was no material to show as to why Sandhya

remained absent before the Court and did not tender her evidence on affidavt.

On 13.04.2015, the Family Court closed the evidence and the matter was fixed

for arguments on 23.04.2015. A show is sought to be made on behalf of

Sandhya that she was under an impression that the matter is not fixed on

23.04.2015 but was fixed on 24.04.2015. The Family Court has rightly held

that if Sandhya and her counsel had presented themselves before the Family

Court on 24.4.2015, only to find that the matter was listed before the Family

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Court on the previous day and the matter was heard for arguments,

Sandhya should have immediately filed an Application on 24.04.2015 asking

the Court to take the matter on Board and to permit her to tender the

evidence on affidavit. The Family Court rightly held that at least before the

pronouncement of the judgment on 29.04.2015, Sandhya should have filed an

application in the Family Court seeking permission to tender evidence or to

argue the case. However, this was not done and after the ex-parte judgment

was passed, Sandhya filed the application for setting aside the ex-parte order.

In any case, in the circumstances of the case, when it is not disputed by

Sandhya that a decree of divorce is passed by the Family Court in the matter

of Sandhya and Prakash on 11.06.2014 by mutual consent. Sandhya cannot

be heard to state that some opportunity be granted to her to defend the case as

the case is indefensible. On the basis of a divorce decree passed in the matter

between Sandhya and Prakash in the year 2014, the Family Court has rightly

held that Sandhya could not have married Arvind before her marriage with

Prakash was dissolved. We do not find any infirmity in the judgment and order

of the Family Court.

12. In the result, we dismiss the Family Court Appeal, with no order

as to costs.

                          JUDGE                                      JUDGE
sahare