Anuja Chandresh Joshi vs Chandresh Padmakar Joshi
2017 Latest Caselaw 7799 Bom

                                                              F.C.A.No.28/2017
                                     1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                     FAMILY COURT APPEAL NO. 28 OF 2017

Anuja w/o Chandresh Joshi,
Age 33 years, Occu. Service,
R/o N-9, CIDCO, Aurangabad                          ..Appellant

        Versus

Chandresh s/o Padmakar Joshi,
Age 46 years, Occu. Nil
R/o Plot No.8, N-8, CIDCO,
Aurangabad                                          ..Respondent

Mrs R.R. Mane, Advocate for appellant Mr A.D. Kasliwal, Advocate for respondent

CORAM : T.V. NALAWADE AND A.M. DHAVALE, JJ

DATE : 4th October 2017

ORAL JUDGMENT (Per T.V. Nalawade, J.)

Heard.

2. Appeal is admitted. Notice, after admission. Learned Counsel

Mr Kasliwal waives service of notice for respondent.

3. The appeal is filed against the judgment and decree dated 23th

June 2017 in Hindu Marriage Petition No.A-364 of 2016, which was

pending in Family Court, Aurangabad. The proceeding was filed by

respondent-husband under the provisions of Section 13 (1) (i-a) and (i-

b) of the Hindu Marriage Act, 1955 for dissolution of marriage.

4. The submissions made and the record show that the wife, who

is suffering from cancer, could not attend the Court, as she was under

treatment at the relevant time. In the circumstances, trial Court

F.C.A.No.28/2017

passed order by no cross in respect of evidence given by the husband.

Though there was written statement of the wife, due to her absence

evidence of the husband was closed and she did not give her evidence

in rebuttal. Due to these circumstances, trial Court has granted

decree on the basis of unrebutted evidence given by the husband.

5. Divorce is an extreme step, which is available to the couple.

The Courts are not expected to give the divorce only on the basis of

evidence given by the husband and further granting or refusing

divorce is within the discretion of the Court. In the present matter,

the husband had filed the proceedings on two grounds like desertion

and cruelty. In view of nature of contentions and nature of evidence

given, this Court holds that opportunity needs to be given to the wife

to contest the matter. In these circumstances, this Court holds that it

is necessary to remand the matter to the trial Court to decide afresh

on merit after giving opportunity to the wife to contest the matter.

6. In the result, Family Court Appeal is allowed. The judgment and

decree dated 23.6.2017 passed by the Principal Judge, Family Court,

Aurangabad in Petition No.A-363/2016 is set aside. Matter is

remanded to the trial Court. As the husband has contended that he

separated since 2008, the trial Court is expected to dispose of the

matter, as expeditiously as possible and preferably within four months

from the date of receipt of order of this Court.

7. Both the sides are allowed to lead their evidence.

F.C.A.No.28/2017

8. Parties to appear before the Family Court, Aurangabad on 12th

October 2017.

       ( A.M. DHAVALE, J.)             ( T.V. NALAWADE, J.)




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