Bombay High Court
Kapil S/O Chandrakant Bhoyar vs Priya W/O Kapil Bhoyar on 17 October, 2023
Bench: Vinay Joshi, Vrushali V. Joshi
2023:BHC-NAG:15276-DB
1 921 FCA 13.23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FAMILY COURT APPEAL (FCA) NO. 13/2023
Kapil S/o Chandrakant Bhoyar,
Aged 42 yrs., Occ. Service,
R/o. Sparta 1404, A-Wing,
Hiranandani Estate, Thane (West),
Dist. Thane.
APPELLANT
(Ori. Respondent)
VERSUS
Priya w/o. Kapil Bhoyar,
Aged 40 yrs., Occ. Household,
C/o. Shri Vijayrao Bhaise,
R/o. Rachana Shanti Apartment,
near Biyani Square, Camp,
Amravati, Dist. Amravati.
RESPONDENTS
(Ori. Petitioner)
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Mr. S. B. Gandhe, Advocate for appellant.
CORAM : VINAY JOSHI AND
MRS.VRUSHALI V. JOSHI, JJ.
DATE : 17.10.2023
ORAL JUDGMENT (PER VINAY JOSHI, J.)
Heard.
2. Admit.
2 921 FCA 13.23.odt
3. This appeal raises a challenge to the order dated 13.01.2023
passed by the Family Court, Amravati in Petition No. A/210/2018, by
which said petition was came to be dismissed in-default. Notice of
this appeal was issued to the respondent (wife), however despite
service, she choose to remain absent.
4. Initially, respondent (wife) has filed petition for decree of
divorce on the ground of cruelty and desertion. In response to the
petition, appellant (husband) has filed written statement as well as
counter claim seeking similar relief of decree of divorce.
5. It reveals from the impugned order that there were talks of
settlement before the marriage councilor, but it was not worked out.
On the basis of rival pleading The Family Court has framed issues
and kept the matter for recording of the evidence. Since the
petitioner (wife) did not appear on various dates, it resulted into
dismissing the petition in-default vide impugned order dated
13.01.2023.
6. It is appellant's contention that the Trial Court has not
considered the counter claim at all. In case, the petitioner (wife) was
not interested, the Trial Court ought to have dismissed divorce
petition, and to have proceeded with the counter claim. Learned
3 921 FCA 13.23.odt
counsel appearing for the appellant would submit that counter claim
was duly stamped as well as there was no prior order of dismissal of
counter claim.
7. It reveals from the issues framed by the Trial Court that the
counter claim was not considered at all. The copy of Roznama does
not disclose that the Trial Court has taken cognizance of counter
claim or directed the petitioner to file written statement to the
counter claim. In view of Order VIII Rule 6D of The Code of Civil
Procedure, if the suit (petition) is discontinued or dismissed, the
counter claim would be proceeded. Rather, the Trial Court has not
considered that the written statement also bears a counter claim.
8. In the circumstances, the impugned order to the extent of
disposing entire petition is not sustainable in the eyes of law. So far
as dismissal of divorce petition of wife is concerned, no fault can be
culled out in this appeal. However, the Trial Court while dismissing
the petition, ought to have clarified that the counter claim shall go
on. In the circumstances, by allowing appeal, we modify the
impugned order by clarifying that though wife's petition is dismissed
in-default, however, counter claim of husband shall proceed further
in accordance with law.
4 921 FCA 13.23.odt
9. Appeal stands disposed of in above terms.
(MRS.VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PA To Honourable Judge
Date: 18/10/2023 12:36:58
