Bombay High Court
Rajashri Arvind Jadhav vs Arvind Krushnarao Jadhav on 10 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
936 SECOND APPEAL NO.654 OF 2012
WITH
SECOND APPEAL NO.655 OF 2012
RAJASHRI ARVIND JADHAV
VERSUS
ARVIND KRUSHNARAO JADHAV
...
Mr. D.R. Jayabhar, Advcoate for the appellant
Mr. S.P. Salgar, Advocate h/f Mr. N.V. Gaware, Advocate for the sole
respondent
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 10th AUGUST, 2021
ORDER :
1 Both the parties in appeals are the same. They are husband and
wife. The appellant in both the case is wife. Second Appeal No.655 of 2012
is arising out of order and decree passed in Hindu Marriage Petition
No.133/2004 by learned 3rd Joint Civil Judge Senior Division, Ahmednagar
on 18.01.2005. It was the petition filed under Section 9 of the Hindu
Marriage Act, 1955 by the husband for restitution of conjugal rights. It
proceeded ex-parte, as it was held that the notice issued to the respondent
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through RPAD has been returned unserved with remark "not claimed". It was
taken as due service. The decree was passed in respect of resumption of
cohabitation by the respondent with the petitioner. Important point to be
noted is that the matter was pending for about 4-5 years before the First
Appellate Court and no steps were taken by the wife to remain present before
the concerned Court. She challenged the said decree in Regular Civil Appeal
No.200/2008. It was heard by learned District Judge-5, Ahemednagar and
dismissed on 31.07.2012. It will not be out of place to consider that on
29.09.2005 the petitioner husband filed Hindu Marriage Petition
No.213/2005 before Civil Judge Senior Division, Ahmednagar for divorce, on
the ground of desertion. That means, after 8 months of the decision in the
petition for restitution of conjugal rights the petition for divorce was filed. It
was also decided ex-parte against the present appellant-wife on 19.09.2006.
It was specifically observed in the Judgment of lower Court that the notice
was served on the respondent (there appears to be typographical mistake as
'petitioner'), however, she failed to appear in the matter and matter
proceeded ex-parte against her. Learned Advocate for the appellant tried to
take advantage of the typographical mistake, stating that word 'petitioner'
has been mentioned, and therefore, it appears that the learned Trial Judge
has not applied his mind. I do not agree with the same. Further, it is stated
that 'she' failed to appear and matter proceeded ex-parte against 'her'. It
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shows that learned Trial Judge was very much aware that the respondent is
the wife. It was held that the wife has continuously for a period not less than
two years deserted the husband, and therefore, decree for divorce was
granted and the marriage between them was dissolved. That decree was
challenged by the wife in Regular Civil Appeal No.201/2008. It was also
heard by learned District Judge-5, Ahmednagar and was also decided on
31.07.2012. It was also dismissed. Hence, present two appeals.
2 The learned Advocate for the appellant has tried to contend that
one opportunity should be given to the wife to appear before the Trial Court
and contest the matter, however, he failed to convince that why the wife
failed to appear inspite of due service of notice before the Trial Court in
petition for divorce.
3 It was submitted on behalf of the respondent that after the
decree for restitution of conjugal rights was allowed, he had filed execution
petition. In that proceeding also she remained absent inspite of due service.
4 If we consider the conduct of the appellant, she voluntarily
remained absent, allowed the decrees to be passed against her. Under such
circumstance, when there is no ground at all shown by her for remaining
absent, no question arises for remanding the matter. She has not stated that
4 SA_654_2012
her address was different, which was known to the husband; yet, in the
petitions a wrong address was given. Therefore, when address was correct,
notices were given on that address. Then if it is returned unserved with a
remark "not claimed", then that will have to be taken a good service under
Section 27 of the General Clauses Act, 1897. As the wife has failed to show
any reasonable ground, the decrees, those have been passed legally, need not
be interfered with, only on the ground of so called sympathy. No substantial
questions of law as contemplated under Section 100 of the Code of Civil
Procedure, 1908 are arising in this case. Further, it is also submitted on
behalf of the appellant herself that now the respondent has performed
remarriage. Under such circumstance, even in the interest of justice also;
when the respondent had adopted legal procedure to get divorce and then
has remarried, it need not be interfered with. Second Appeals No.654 of
2012 and 655 of 2012 stand dismissed.
( Smt. Vibha Kankanwadi, J. )
agd
