Bombay High Court
Jayawant Bhimrao Kamthe vs Jayashree Jaywant Kamthe on 7 September, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
908 FAMILY COURT APPEAL NO.3 OF 2021
WITH
CIVIL APPLICATION NO.787 OF 2021
IN FCA/3/2021
JAYAWANT BHIMRAO KAMTHE
VERSUS
JAYASHREE JAYWANT KAMTHE
...
Advocate for Appellant/Applicant : Mr. Pahilwan Gautam J.
Advocate for Respondent : Mr. Joslyn Anthony Menezes.
...
CORAM : RAVINDRA V. GHUGE, AND
S. G. MEHARE, JJ.
DATE : 07.09.2021
PER COURT :-
1. The appellant-husband is aggrieved by the judgment and
order dated 14.12.2020, passed by the learned Family Court
vide which M.A.N.R.J.I. No.02 of 2019 filed by the respondent-
wife, under Order 9 Rule 13 of the Civil Procedure Code,
seeking setting aside of the ex-parte decree, has been allowed.
The delay of 110 days has been condoned and the ex-parte
judgment and decree dated 14.09.2018, allowing divorce
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petition No.A-231 of 2018 filed by the petitioner-appellant-
husband, had been set aside.
2. We have considered the strenuous submissions of the
learned advocates for the appellant-husband and the
respondent-wife. With their assistance, we have perused the
appeal paper book.
3. Petition No.A-231 of 2018 was filed by the appellant
under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act on
23.05.2018. In 3 months and 22 days, the learned Family
Court delivered the judgment dated 14.09.2018 allowing the
petition ex-parte and granting the decree of divorce to the
husband. The entire case rests upon the bailiff report dated
25.06.2018 wherein he has remarked that when he offered the
notice to the wife, she angrily said that as the husband has
filed a divorce proceeding, give notices to the husband and not
to her.
4. On this premise, the learned Family Court proceeded
with the matter. The husband filed an affidavit in lieu of
examination-in-chief and based on the following grounds, the
proceedings were allowed :
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(a) The wife desired a separate residence away
from her in-laws.
(b) After the husband returned home from duties,
she would not open the door.
(c) She wanted the husband "to dance to her tune".
(d) She would like to visit her parental home
frequently even after birth of two children.
(e) She desired that her husband should purchase a
residence and a four wheeler.
(f) She would insult him in the presence of friends.
(g) She would not prepare proper food for the
husband.
5. Having considered the above factors, it is noteworthy
that the marriage of the appellant and the respondent lasted
for 20 years. They have two children, a son and a daughter. A
copy of the communication from the Principal of the School, in
which the younger child i.e. the daughter was taking education
in the 10th Standard, dated 02.09.2021, is cited which indicates
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that the husband has not deposited the academic year fees of
Rs.19,500/- for the 9th Standard and Rs.6,000/- for the 10th
Standard. The daughter is put to risk of suffering in her
academic curriculum.
6. We have perused the application Exh.28 in M.A.N.R.J.I.
No.02 of 2019 filed by the wife seeking the recalling of the ex-
parte judgment and for restoring the original proceedings so as
to be contested on its merits. It is fairly stated in paragraph
No.4 by the wife that she refused to accept the notice due to
lack of knowledge and was under an apprehension that the
person who came to deliver the notice must have been the
friend of the husband and they were likely to obtain her
signatures fraudulently over divorce papers. It was a mistake
committed by her under a misbelief. She desires to save the
marriage so that the couple could live together and the
children could be taken care of.
7. It does not call for any debate that no litigant benefits by
neglecting his or her court proceedings. In the facts and
circumstances before us, we do not find that the wife could
have drawn any advantage, muchless undue advantage by
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refusing to accept the notice. The learned Family Court has
disposed off the proceedings in 3 months and 22 days and
restoration of the original proceedings, therefore, has not
caused an irreparable harm or manifest inconvenience or grave
prejudice to the husband. It is always desirable in law to have
a fair contest in litigation. Had it been the case that the
original proceedings were lingering for a period of 5 years or
10 years or 15 years and thereafter, the restoration of the
original proceedings would reverse the clock by 5 or 10 years.
The moment, the wife came to know that the husband has
secured an ex-parte decree, she has approached the Court. The
delay of 110 days condoned by the learned Family Court does
not call for any interference, in the light of the law laid down
by the Hon'ble Apex Court in the matters of Collector Land
Acquisition Anantnag and another Vs. MST. Katiji and others,
AIR 1987 SC 1353 and Esha Bhattacharjee v. Managing
Committee of Raghunathpur Nafar Academy and others
(2013) 12 SCC 649.
8. Both the parties had led evidence before the learned
Family Court in the restoration proceedings. The wife was
successful in convincing the Trial Court that it was on account
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of her misbelief and lesser understanding of court matters that
she had not accepted the notice apprehending that her
signatures may be obtained by the person posing as a bailiff.
She uttered the sentence before bailiff that "she cannot accept
notice and she does not desire to grant divorce to the
husband". This indicates that she desired to save her marriage
for the sake of her children and her social status besides the
comforts of being a married woman.
9. In view of the above, we do not find that the impugned
judgment setting aside the ex-parte judgment of divorce could
be said to be perverse or erroneous in the light of the law laid
down by the Hon'ble Apex Court in the matter of Surya Dev
Rai Vs. Ram Chander Rai, (2003) 6 SCC 675 and Syed Yakoob
Vs. K. S. Radhakrishnan and others, AIR 1964 SC 477.
10. As such, this appeal fails and the same is, therefore,
dismissed. The pending Civil Application would not survive
and stands disposed off.
11. We make it clear that the original proceedings filed by
the husband would be considered by the learned Family Court
on it's own merits and the said Court would not be influenced
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by any observations, if any, that may have been made in this
order.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
...
vmk/-
