Pushpa W/O Arun Bhagat vs Arun S/O Tukaram Bhagat
2017 Latest Caselaw 7061 Bom

 FCA29.17-Judgment                                                                              1/7


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


                  FAMILY COURT APPEAL  NO.  29   OF   2017


 APPELLANT :-                         Pushpa  w/o  Arun Bhagat,  Aged 43 yrs., 
 [Ori.Respd.]                         Occ.  Household,  R/o.  C/o.  Shri Gajanan S.
 [On R.A.]                            Kamble,   Hamdapur,   Tq.   Seloo,   Distt.
                                      Wardha. 

                                         ...VERSUS... 

 RESPONDENT :-                        Arun s/o Tukaram Bhagat, Aged about 52
 [Ori.Petitioner]                     years,   Occu:   Service,   R/o.   Plot   No.79/A,
                                      New   Indira   Colony,   Bhagwan   Nagar   Road,
                                      Bhagwan Nagar, Nagpur. 

 ---------------------------------------------------------------------------------------------------
                    Mr.Mahesh V. Rai, counsel for the appellant.
                    Mr.A.S.Kulkarni, counsel for the respondent.
 ---------------------------------------------------------------------------------------------------


                                        CORAM : SMT. VASANTI    A    NAIK & 
                                                    M. G. GIRATKAR
                                                                   ,   JJ.

DATED : 13.09.2017

O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.)

The family court appeal is admitted and heard finally at

the stage of admission with the consent of the learned counsel for the

parties, specially when the appellant was not represented before the

Family Court and an ex parte decree for restitution of conjugal rights is

passed in favour of the respondent.

FCA29.17-Judgment 2/7

2. The appellant and the respondent were married on

24/05/1995 at Hamdapur and two children are born to them from the

wedlock. The respondent-husband had filed proceedings against the

appellant-wife for a decree of divorce under section 13(1) (i) and (i-a)

of the Hindu Marriage Act. According to the husband, the appellant-

wife had voluntary sexual intercourse with another man namely Raju

Dhonge during the subsistence of the marriage between the appellant

and the respondent. The husband had pleaded in the said petition that

the wife had treated him with cruelty. The Family Court, however by

the judgment dated 28/07/2013 dismissed the petition filed by the

husband after holding that the husband had failed to prove that the

wife had voluntary sexual intercourse with another man during the

subsistence of the marriage between the parties. The Family Court held

that the husband was not successful in proving that the wife had treated

him with cruelty. After the said petition filed by the husband was

dismissed by the Family Court on 20/07/2013, the husband filed

proceedings before the Family Court under section 9 of the Hindu

Marriage Act for restitution of conjugal rights. In the said proceedings,

it was pleaded by the husband that the wife was not treating the

husband well and she used to leave the matrimonial house by keeping

her small children at home. It was pleaded that the wife had left the

matrimonial home and had started residing with her parents. It is

FCA29.17-Judgment 3/7

pleaded that when he tried to contact her, she had informed him that

she requires Rs.35,000/- to Rs.40,000/- per month for shopping and she

also wanted half share in his landed property. It was pleaded by the

husband that since the wife was not ready to return to the matrimonial

home, it was necessary to pass a decree against the wife for restitution

of conjugal rights. Though the wife received the notice of the

proceedings filed by the husband before the Family Court, neither the

wife nor her counsel had attended the proceedings before the Family

Court and hence the Family Court passed a decree for restitution of

conjugal rights in favour of the husband. The said judgment of the

Family Court is challenged by the appellant-wife in this family court

appeal.

3. Shri Rai, the learned counsel for the appellant submitted

that the Family Court was not justified in passing the ex-parte decree in

favour of the respondent-husband without granting an opportunity to

the appellant to defend the petition. It is stated that though the

judgment of the Family Court in the earlier petition, dated 20-7-2013,

dismissing the petition filed by the husband was placed before the

Family Court at Exhibit 23, the Family Court did not consider the said

judgment before granting the relief in favour of the husband. It is

submitted that the counsel for whom the appellant had singed the

Vakalatnama did not appear in the matter and did not represent the

FCA29.17-Judgment 4/7

appellant. It is submitted that by taking a lenient view in the matter,

this Court may remand the matter to the Family Court more so when

the previous judgment was available and was not considered before

passing the ex-parte decree.

4. Shri Kulkarni, the learned counsel for the respondent

supported the judgment of the Family Court. It is submitted that after

service on the appellant, the Family Court granted opportunity to the

appellant to defend the petition, however, the appellant did not avail of

the same. It is submitted that there is no material tendered by the

appellant in this Court that the Vakalatnama was indeed signed by the

appellant and that the counsel had not represented the appellant in the

Family Court. It is stated that even the name of the counsel who was

supposed to represent the appellant is not mentioned. It is stated that

in the circumstances of the case, the appeal is liable to be dismissed.

5. 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 appeal : -

(i) Whether the ex-parte judgment of the Family Court is liable to be set aside and an opportunity is liable to be granted to the appellant to defend the petition filed by the respondent - husband ?

              (ii)      What order ? 





  FCA29.17-Judgment                                                                     5/7

6. We have perused the original record and proceedings as

also the roznama. It appears that after the notice was served on the

appellant, the matter was adjourned by the Family Court on a few

occasions so as to grant an opportunity to the appellant to defend the

petition. It appears that neither the appellant nor her counsel was

present in the Family Court on the due dates of hearing. In the

circumstances of the case, the Family Court cannot be blamed for

passing an ex-parte decree in the petition filed by the husband.

However, in the circumstances of the case, specially, when the Family

Court has not considered the relevance or impact of the previous

judgment dated 20-7-2013 at Exhibit 23, while answering the issues

involved in the petition filed by the husband for restitution of conjugal

rights, it would be necessary to remand the matter to the Family Court

for a fresh decision on merits after granting an opportunity to the

appellant to defend the petition filed by the husband. In our considered

view, when the judgment dated 20-7-2013 was available before the

Family Court, it was necessary for the Family Court to consider whether

the answers on the points for determination in the judgment in that

petition would have had some effect on the points that are framed in

the petition filed by the husband for a decree of restitution of conjugal

rights. In the previous petition, the claim of the husband that the wife

had voluntary sexual intercourse with another man during the

FCA29.17-Judgment 6/7

subsistence of the marriage and that she had treated him with cruelty

was decided against the husband. What impact the said findings would

have had on the issue whether the wife had a just and reasonable

excuse to reside away from the husband should have been considered

by the Family Court. We find that the non consideration of the said

judgment which was on record before the Family Court would vitiate

the ex-parte judgment of the Family Court as it is well settled that even

if the matter is not defended by the defendant or the opponent, it would

be necessary for the Court to consider the material on record before

passing the order of either granting the prayer made in the proceedings

or of rejecting the prayer made in the proceeding. It is well settled that

even if the defendant does not defend the proceeding filed against him,

it would not be necessary for the Court to pass a decree in favour of the

party approaching the Court. The Court may, in the circumstances of

the case, consider granting or refusing to grant a decree.

7. Hence for the reasons aforesaid, the family court appeal is

partly allowed. The judgment of the Family Court dated 28-9-2016 is

hereby set aside. The Family Court is directed to decide the petition

filed by the husband for restitution of conjugal rights after granting an

opportunity to the appellant to defend the petition. The parties are

directed to appear before the Family Court on 3-10-2017 so that the

issuance of notice to the parties could be dispensed with. The Family

FCA29.17-Judgment 7/7

Court is directed to decide the petition as early as possible. Order

accordingly. No costs.

The record and proceedings be remitted to the Family

Court at the earliest.

                         JUDGE                                              JUDGE 


 KHUNTE - WASNIK