Bombay High Court
Mrs.Manisha Ashok Sutaria @ ... vs Mr.Ashok Sutaria on 11 December, 2017
Bench: Vasanti A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
FAMILY COURT APPEAL NO. 104 OF 2017
Mrs. Manisha Ashok Sutaria @ Manisha .....Appellant
Dipakkumar Desai
R/o Anand Nagar, Opp. Nilkanth Cinema,
Block 13, L-148 Arihant, Rajkot, Gujrat.
V/s.
Mr. Ashok Sutaria ....Respondent
R/o. Bhagweshwar Shikar-1 Flat No. 4,
60 Ft. Road, Ghatkopar (East) Mumbai-400 077.
Mr. Saeed Kadu advocate for the appellant.
Ms. Anushka Shreshtha for the respondent.
CORAM : SMT. VASANTI. A. NAIK,
SARANG V. KOTWAL, JJ.
DATE : DECEMBER 11, 2017.
ORAL JUDGMENT:
The family court appeal is Admitted and heard finally at the stage of
admission as the parties were put to notice by the order dated 20/07/2017 that
the family court appeal would be heard at the admission stage.
By this family court appeal, the appellant-wife has challenged the order
of the Family Court Mumbai, at Bandra dated 23/01/2017 in Civil M. A. No.
246 of 2014 rejecting the application filed by the appellant under Order 9
Rule 13 of Civil Procedure Code for setting aside the ex-parte judgment and
decree passed in favour of the respondent-wife in the petition filed by him for
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a decree of divorce on the ground of cruelty.
The respondent-husband and the appellant-wife were married as per the
customs prevailing in their community on 26/06/2012 at Gujrat. Since there
were some disputes between the parties, the parties had started residing
separately. The husband filed a petition against the wife bearing petition A-
715 of 2013 for a decree of divorce on the ground of cruelty. The said petition
was allowed by an ex-parte judgment and decree dated 10/10/2014. After the
appellant-wife became aware of the ex-parte judgment and decree dated
10/10/2014, she had moved an application for setting aside of the ex-parte
decree, under Order 9 Rule 13 of the Civil Procedure Code. The application
of the appellant-wife was rejected by the judgment dated 23/01/2017. The
judgment is challenged by the appellant by filing this family court appeal.
The learned counsel for the appellant-wife submitted that the Family
Court was not justified in dismissing the application filed by the appellant for
setting aside of ex-parte decree. It is submitted that the Family Court failed to
give due weightage to the fact that the appellant-wife was residing at Rajkot
and it was not possible for her to attend the Family Court at Bandra on each
and every date of hearing. It is submitted by taking this Court through the
relevant portion of the judgment of the Family Court that on several dates of
hearing, the wife had remained present before the Family Court. It is stated
that though the wife had explained the reasons for remaining absent before
the Family Court when the matter was decided ex-parte and had pointed out
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that there was 'sufficient cause' for the appellant not to remain present before
the Family Court at the relevant time, the Family Court did not consider the
reasons stated by the appellant in the right perspective. It is submitted that
some proceedings are filed by the wife at Rajkot and in the circumstances of
the case, when the appellant is unemployed and has a minor daughter from
her earlier marriage, it was not possible for her to attend the Family Court at
Bandra on every date of hearing. It is submitted that by taking a lenient view
in the matter as the petitioner is residing at Rajkot along with her minor
daughter and was at the relevant time residing with her old and ailing parents,
this Court may set aside the judgment of the Family Court dated 23/01/2017
and remand the matter to the Family Court for a fresh decision in the matter
on merits.
On the other hand, it is submitted on behalf of the respondent-husband
that the appellant was grossly negligent in defending the petition filed by the
husband and in the circumstances of the case, the Family Court haad rightly
rejected the application filed by the appellant for setting aside the ex-parte
decree. It is submitted that on several dates of hearing, the wife had failed to
remain present before the Family Court. It is stated that though the wife had
sought for legal aid and the same was provided to her, she failed to remain
present. It is stated that in the circumstances of the case, the Family Court had
no other alternative to decide the petition filed by the husband, ex-parte, in the
absence of the wife. It is submitted that the appellant had failed to enter into
witness box in this proceedings and had filed a pursis that she did not wish to
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tender evidence to prove sufficient cause. It is submitted that solely on the
basis of the medical reports and other medical papers tendered by the
appellant before the Family Court relating to her old father and mother, the
Family Court could not have set aside the ex-parte judgment and decree dated
10/10/2014. The learned counsel sought for the dismissal of the family court
appeal.
On hearing the learned counsel for the parties and on a perusal of the
record and proceedings and the judgment of the Family Court, it appears that
the following points arise for determination in this family court appeal:-
(i) Whether the family court was justified in rejecting the
application filed by the wife for setting aside the ex-parte judgment and
decree?
(ii) What order?
To answer the points for determination in this family court appeal, it
would not be necessary to refer to the factual disputes between the parties. It
is only necessary to consider the dates on which the Family Court had fixed
the petition filed by the husband for hearing and what transpired on those
dates. It appears that the appellant had voluntarily appeared before the family
court on 13/08/2013 and had filed a pursis in respect of her appearance vide
exhibit 11. On the next date of hearing i.e. 03/09/21013, the wife failed to
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appear and the Family Court passed an order of "No W.S.". The wife
remained absent on 22/10/2013 but remained present on the next date of
hearing on 09/12/2013. The respondent-husband had filed his affidavit in
examination-in-chief on 24/01/2014 and the matter was adjourned for his
cross-examination on 20/02/2014. Since the appellant was absent on that day,
the Court had issued notice for securing her appearance. The wife appeared
on the next date of hearing i.e. 25/03/2014 and sought for legal aid. The legal
aid was granted to the wife. However, the wife did not remain present on
28/04/2014 and after the notice was served on her, she appeared in the Family
Court on 22/05/2014. She also remained present on the next date of hearing
i.e. 08/07/2014. Thereafter, since the wife failed to remain present, the ex-
parte judgment and decree was passed on 10/10/2014.
In the circumstances of the case, we do not find that the wife was
totally negligent in defending the action against her. Though the wife was not
present on some of the dates of hearing, she was present on the other dates of
hearing. The Family Court ought to have considered that the wife was not a
resident of Mumbai and was residing at Rajkot, whereas the husband was
residing at Mumbai. The wife has filed certain proceedings against the
husband at Rajkot, however, the husband had filed proceedings against the
wife for the decree of divorce at Mumbai. Admittedly, the wife has a minor
daughter from her first marriage and when the wife had to look after the
minor daughter, it must not have been easy for the wife to leave the minor
daughter at Rajkot and attend the proceedings in the Family Court at Bandra
on each and every date of hearing. It is the case of the wife that a lawyer
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practicing in the Supreme Court had asked the appellant-wife not to attend the
Family Court proceedings at Mumbai. Though minute and specific details in
that regard are not stated in the application for setting aside the ex-parte
decree, we cannot disbelieve the said statement in the totality. We find that
numerous documents were tendered by the wife before the Family Court to
show that her mother and father were seriously ill in the year 2014. The
Family Court has made a mention about the same in the judgment that is
appealed in this family court appeal. If that be so, the Family Court ought to
have taken a lenient view in the matter of the wife and should have granted
her a last chance to defend the petition filed by the husband. In the
circumstances of the case, specially because the wife was residing at Rajkot
and it was difficult for her to attend the Family Court at Bandra on each and
every date of hearing, it would be necessary to set aside the judgment of the
Family Court dated 23/01/2017 and remand the matter to the Family Court so
as to give an opportunity to the wife to defend the petition. It is needless to
mention that if on this occasion the wife fails to defend the petition and
continues to remain absent before the Family Court without any just or
reasonable cause, the Family Court would be free to decide the matter in
accordance with law.
Hence, for the reasons aforesaid, the family court appeal is partly
allowed. The judgment of the Family Court dated 23/01/2017 rejecting the
application of the appellant-wife for setting aside the ex-parte judgment and
decree is hereby set aside. The judgment of the Family Court dated
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10/10/2014 is also set aside. The matter is remanded to the Family Court for
deciding the petition filed by the husband as early as possible, in accordance
with law. The parties undertake to appear before the Family Court at Bandra
on 08/01/2018 so that issuance of notice to the parties could be dispensed
with. Since the husband had filed the petition in the Family Court in the year
2013 and the petition is old, the Family Court is requested to make an
endeavour to decide the matter at the earliest. In the circumstances of the
case, no order as to costs.
[SARANG V. KOTWAL, J.] [SMT. VASANTI A. NAIK, J.]
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