Bombay High Court
Rakhi Pravin Wandre vs Pravin Vitthal Wandre on 9 August, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:17599-DB
1 FCA / 7 / 2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
908 FAMILY COURT APPEAL NO. 7 OF 2024
RAKHI PRAVIN WANDRE
VERSUS
PRAVIN VITTHAL WANDRE
...
Advocate for appellant : Mr. Vinod Prakash Patil
Advocate for the respondent - State : Mr. Shaikh Naseer
...
CORAM : MANGESH S. PATIL &
S.G. CHAPALGAONKAR, JJ.
DATE : 09 AUGUST 2024
ORAL ORDER (MANGESH S. PATIL, J.):
Admit.
2. Heard both the sides finally.
3. Petitioner - appellant is the wife of respondent no. 2 and is
challenging the decree of dissolution of marriage passed on the ground
of cruelty contemplated under section 13(1)(ia) of the Hindu Marriage
Act, 1955.
4. Learned advocate for the appellant would submit that
decree was passed ex parte. She was unable to contest the petition.
Reasons have been expressly disclosed in the memo of appeal. It was
a pandemic time. There was no urgency. Opportunity ought to have
been extended to her to contest the petition. Since marriage was
sought to be dissolved on the ground of cruelty, she would suffer
2 FCA / 7 / 2024
irreparable loss and gross injustice, if she is not given a fair opportunity
to contest the petition.
5. Learned advocate would further submit that even the
finding of the learned Judge as regards cruelty is in a slipshod manner.
He has not even discussed the individual circumstances pitted against
the appellant. He has recorded the observation regarding proof of
cruelty as good as in default. The impugned judgment and order be
quashed and set aside and the matter be remanded for decision
afresh.
6. Learned advocate for the respondent - husband would
oppose the appeal. He would submit that it would not lie in the mouth
of the appellant to come out with any excuse. She had caused
appearance but had failed to turn up subsequently to contest the
petition. Since the averments in the petition and the statements in the
examination in chief of the respondent had gone unchallenged, no fault
can be found with the conclusion drawn by the learned Judge
regarding proof of cruelty.
7. We have considered the rival submissions.
8. There is no dispute about the fact that after having caused
appearance once, the appellant had not turned up to contest the
3 FCA / 7 / 2024
petition, however, the explanation given by her in the appeal memo has
gone un-controverted.
9. Appellant was not to gain anything by remaining absent
and not contesting the petition. Merely because for the reasons
mentioned in the appeal memo, she was unable to attend the Court
during pandemic, learned Judge could have considered the
unprecedented situation and could have issued her another notice /
summons before proceeding ex parte.
10. Considering the fact that the impugned judgment and order
dissolves the marriage between the couple, having drastic
consequences on the appellant's rights, in our considered view, it
would be appropriate that the petition is remanded back to the learned
Judge for decision afresh, by extending the appellant an opportunity to
contest the petition. In order to bind her, stipulation can be provided so
that she would not take any liberty hereafter.
11. The appeal is allowed partly.
12. The impugned judgment and order is quashed and set
aside.
13. The matter is remanded back to the Family Court, Jalgaon
for decision afresh.
4 FCA / 7 / 2024
14. Parties shall appear before the Family Court, Jalgaon on
26 August 2024, on which date the appellant shall file her written
statement. The learned Judge shall thereafter decide the proceedings
in accordance with law but expeditiously.
[ S.G. CHAPALGAONKAR ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
