Sau. Smita W/O Umakant Lanjewar vs Umakant @ Shital Namdeorao ...
2021 Latest Caselaw 1524 Bom

                                         1                                       WP3629.17.odt


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


                       WRIT PETITION NO. 3629 OF 2017


 PETITIONER                    : Sau. Smita W/o Umakant Lanjewar,
                                 Aged 36 years, Occu. Teacher.
                                 R/o C/o Anandrao Vairagade,
                                 Kannamwar Ward, Bharat Chowk,
                                 Ballarpur, Tah. Ballarpur
                                 Dist. Chandrapur.

                                              VERSUS

 RESPONDENT                    : Umakant @ Shital namdeorao Lanjewar,
                                 Aged 38 years, Occu. Labour,
                                 R/o C/o Sanjay Ashokrao Hajare,
                                 Navegaon (Murkhala), PO Mudza,
                                 Tah. & Dist. Gadchiroli.

  --------------------------------------------------------------------------------------------------
            None for the petitioner.
            None for the respondent.
  -------------------------------------------------------------------------------------------------

                      CORAM : V. M. DESHPANDE, J.

DATE : JANUARY 22, 2021

ORAL JUDGMENT

1. Rule. Rule is made returnable forthwith.

2. Though, nobody is appearing on behalf of the parties,

after having gone through the writ petition and the impugned order,

this writ petition can be disposed of.

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3. Mr. R. L. Alone, learned counsel for the petitioner is

absent. Though notice for final disposal was issued on 13.06.2017

and it is duly served upon the respondent, the respondent chose not

to put appearance in this proceeding.

4. This writ petition challenges the order passed by the

learned Civil Judge, Senior Division, Gadchiroli below Exh.13 in

Hindu Marriage Petition No. 48/2016 , whereby the learned Judge

rejected the application filed by the petitioner for setting aside the

ex-parte order and seeking permission to file reply and to contest the

proceedings.

5. As per the submissions made in the writ petition, the

marriage between the petitioner/wife and respondent/husband took

place on 11.07.2016 and the petitioner started cohabiting with the

respondent at Gadchiroli where he was working. On oath, it is

stated by the petitioner/wife that at the time of consummation of

marriage at Gadchiroli, the respondent/husband found that the

petitioner is suffering from some skin disease. Therefore, he called

petitioner's father and she was taken to the Skin Specialist.

6. It is also stated on oath that the petitioner was sent

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back to her parental house. The petitioner further averred that the

respondent/husband filed a petition under Section 12 of the Hindu

Marriage Act seeking declaration that the marriage solemnized

between them on 11.07.2016 be declared as null and void. In this

petition, it is further stated that notice of the said HMP was issued to

the petitioner and the matter was placed before the National Lok

Adalat, which was held on 12.11.2016. Though, the petitioner/wife

and her counsel were present in the National Lok Adalat, the

respondent/husband and his counsel remained absent.

7. The matter was thereafter fixed on various dates. The

learned Judge then proceeded ex-parte against the petitioner/wife in

Hindu Marriage Petition No. 48/2016 and therefore, she filed an

application (Exh.13) for setting aside the ex-parte order. A copy of

application (Exh.13) is placed on the record of this writ petition at

Annexure-C. Perusal of the said would show that on the fixed date

of the marriage petition, the petitioner/ wife was not keeping good

health and therefore, she prayed that the earlier order of proceeding

ex-parte be set aside. The copy of application (Exh.13) shows that

on the left hand side, the learned Judge has ordered 'other side to

say'. However, it appears that the respondent/husband did not file

any say and the learned Judge on the very same day has passed the

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following cryptic order :-

"Already ex-parte order passed on 14.03.2017. Notice of petition is served on 19.10.2016. Hence, application cannot be entertained. Hence, rejected."

8. The wife has specifically stated in application (Exh.13)

that she was not keeping good health and therefore, she could not

remain present.

9. In my view, the learned Judge of the Court below has

committed a serious error in rejecting the application (Exh.13) by a

cryptic order. The cryptic reasoning given by the learned Judge is

that the ex-parte order is already passed and therefore, the

application is rejected.

10. Obviously, prayer for setting aside ex-parte order will be

made only after passing of ex-parte order. The learned Judge ought

to have given sufficient opportunity to the wife to defend her case.

In my view, the learned Judge by passing the impugned order has

snatched away the valuable right of the petitioner wife to defend

herself appropriately in the Hindu Marriage Petition since, the

petition was for declaration that the marriage between the husband

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and wife as null and void.

11. The averments made in the petition on affidavit are

remained uncontroverted from the side of the respondent. Hence, I

allow this writ petition.

12. The order dated 18.04.2017 passed by the learned Civil

Judge, Senior Division, Gadchiroli below Exhibit-13 in Hindu

Marriage Petition No. 48/2016 is hereby quashed and set aside.

13. The application (Exh.13) is hereby allowed. If Hindu

Marriage Petition No. 48/2016 is still pending on the file of learned

Civil Judge, Senior Division, Gadchiroli, then an opportunity should

be given to the wife to file her written statement and participate in

the proceedings.

Rule accordingly. No order as to costs.

V.M. Deshpande, J.

Diwale