Shrimant Panditrao Nikalje vs Kalpna Panditrao Nikalje
2023 Latest Caselaw 11208 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


                      APPEAL FROM ORDER NO.66 OF 2022

                    SHRIMANT PANDITRAO NIKALJE
                                VERSUS
                      KALPNA PANDITRAO NIKALJE
                                    ...
         Advocate for Appellant : Ms. Pratiksha Kale holding for
          Mr. Suvidh S. Kulkarni (through Video Conferencing)
          Advocate for Respondent : Mr. S. M. Kamble (Absent)
                                    ...

                                             CORAM :        S. G. MEHARE, J.

                                             DATE       : 01-11-2023

PER COURT :-

1. Heard the learned counsel for the appellant through video conferencing. None present for the respondent. Mr. S. M. Kamble, learned counsel for the respondent is on record but he did not file reply.

2. The appellant is the husband, who had filed a petition for divorce under the Hindu Marriage Act. On 06.06.2019, the respondent/wife did not appear. Hence, the Court had passed an ex parte decree dissolving the marriage by judgment and order, dated 05.02.2020. Thereafter, the respondent/wife preferred an appeal before the Ad-hoc District Judge-1, Jalna, on 19.07.2022. The learned first Appellate Court recorded the finding that it is necessary to give an opportunity to the wife to put up her side about the document on which she relied upon. This is not the Regular Civil Suit of property matter, but it is a matrimonial dispute between husband and wife. They are having two children. It is the matter regarding their future life. It is necessary that the

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matter should be heard on merit on the point of cruelty. So, retrial is necessary. Therefore, it will be proper to reverse and set-aside the judgment of the trial Court and to remand the matter to the learned trial Court as per the provisions of Order XLI, Rule 23(A) of the Code of Civil Procedure and, accordingly the judgment and decree of divorce is set-aside and the matter is remitted to the learned trial Court for fresh trial.

3. The learned counsel for the appellant would submit that after the decree of divorce, the husband performed marriage. Therefore, no purpose would be served by remitting the matter. The learned first Appellate Court did not assign the reasons for remitting the matter back. The wife was to satisfy the Court that the circumstances were such that she could not reach the Court in time to contest the petition. Allowing the wife to contest the divorce petition would create chaos in second matrimonial life of the appellant/husband.

4. There appears substance in the submissions of the learned counsel for the appellant.

5. Issue notice to the respondent, returnable on 12.01.2024.

6. In the meantime the execution, operation and effect of the impugned judgment and order of the learned Ad-hoc District Judge-1, Jalna, in Regular Civil Appeal No.40 of 2020, dated 19.07.2022, stands stayed.

7. Call R & P.

( S. G. MEHARE ) JUDGE

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