Bombay High Court
Savita Raju Khare vs Raju Kautik Khare on 12 August, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-AUG:21841-DB
1 Judgment FCA 52-24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO.52 OF 2024
WITH
CIVIL APPLICATION NO.6465 OF 2025
Sow. Savita w/o Raju Khare,
Age : 43 years, Occu.: Household,
R/o.: C-7/04, Mayur Park Harsul,
Chhatrapati Sambhajinagar .... APPELLANT
(Original Petitioner)
VERSUS
Raju s/o Kautik Khare,
Age : 50 years, Occu.: Private service,
R/o.: C-25, Subhash Colony,
Simra Road, Govindpura,
Bhopal (Madhya Pradesh-462023) .... RESPONDENT
(Original Respondent)
....
Mr. Rajesh H. Mewara, Advocate for the Appellant
Mr. S. N. Dudhate, Advocate for the Respondent
....
CORAM : NITIN B. SURYAWANSHI AND
SANDIPKUMAR C. MORE, JJ.
RESERVED ON : 06/08/2025
PRONOUNCED ON: 12/08/2025
JUDGMENT :
(Per : Sandipkumar C. More, J.) :
1. Admit.
2. Heard finally with consent of the parties alongwith Civil
Application No.6465 of 2025 filed by the appellant- original
petitioner for production of additional documents and evidence
under Order XLI Rule 27 of CPC.
2 Judgment FCA 52-24.odt
3. The appellant - petitioner is aggrieved by the judgment and
order passed by the learned Family Court Judge, Aurangabad in
Petition No. A-319 of 2020, whereby her request for dissolution of
her marriage with the respondent, has been rejected.
4. The background facts are as under :
The marriage of the appellant - wife is solemnized with
respondent- husband on 11/04/2004 at Aurangabad, wherein her
parents gifted gold ornaments to respondent and his family
members and also incurred marriage expenses to the tune of
Rs.6,50,000/-. The appellant started residing with the respondent
- husband in his joint family at Bhopal. However, after few days of
the marriage, respondent and his family members started
harassing her. Though it was told at the time of marriage that
respondent - husband was in permanent service in Madhya
Pradesh Electricity Board, but subsequently it was found that he
was working on temporary basis. Respondent was having habit of
drinking liquor and he used to spend all his money for that
purpose only. He was not giving money to the appellant for
household expenses. Despite the appellant giving birth to a male
child, the respondent never took any responsibility for maintaining
his son. Contrary to that, he was asking amount of Rs.5 lakh from
the appellant for starting new business. On failure of fulfilling the
said demand, the respondent drove the appellant out of his house
3 Judgment FCA 52-24.odt
in the year 2017. However, on the request parents of the appellant,
the respondent and his family members kept the appellant in their
house but after few days, illtreatment of the appellant at the hands
of the respondent and his family members continued as before.
Thereafter, their 9 year old son was diagnosed with blood
cancer and shifted to Tata Memorial Cancer Hospital in Mumbai.
The respondent-husband denied responsibility for providing
financial assistance for his son's treatment. Appellant, thus, left
with no option but to seek help from her brother, who mortgaged
his flat and arranged money for treatment of son of the appellant.
She also had to stay at Mumbai alone with her son. During the
period of treatment, the respondent never paid any amount but
only once he visited Mumbai under the influence of liquor and
raised quarrel with the appellant. When son of the appellant
initially got recovered and discharged from the aforesaid hospital,
he again became unconscious in the school and therefore, doctor
suggested that he should be admitted to Tata Cancer Hospital at
Mumbai again. On the second occasion also the respondent -
husband did not pay anything towards the treatment.
Unfortunately, their son could not survive. After that when the
appellant again went to Bhopal, but her illtreatment at the hands
of the respondent continued.
Thereafter, the appellant took every care of the respondent-
husband when he was admitted to hospital due to illness specially
4 Judgment FCA 52-24.odt
when his brothers refused to help him. When the respondent
recovered from the illness, the appellant due to her ill health came
to Aurangabad with the permission of the respondent on
22/02/2018. However, thereafter despite efforts taken by the
appellant, the respondent did not allow her to join his company and
contrary demanded Rs.5 lakh for business. As such, he willfully
deserted the appellant from 22/02/2018. He also sent filthy
messages to her on mobile and therefore, the appellant was
constrained to file the aforesaid petition for divorce.
Though the respondent filed written statement in the court of
learned family court judge admitting his relationship with the
appellant and death of their son due to cancer, but the allegations
against him in respect of illtreatment, were denied. According to
him, the appellant was not behaving properly with him and she
was insisting him to shift at Aurangabad. In short, he put all the
blame on the appellant for not residing with him. According to
him, when son Ankush was admitted in Tata Memorial Hospital at
Mumbai for treatment of cancer, he used to pay money to the
appellant for said treatment. He also obtained monetary help from
Madhya Pradesh Government for the said treatment but
unfortunately his son could not survive. He contended that he was
suffering from jaundice and was admitted in AIIMS hospital at
Bhopal, but the appellant leaving him in ill condition, left his
5 Judgment FCA 52-24.odt
company on her own without any reasonable cause. As such, he
has prayed for dismissal of her petition.
5. Learned Family Court Judge after considering the evidence of
the appellant, dismissed her petition with costs and hence this
appeal.
6. Learned counsel for the appellant submits that the learned
Family Court Judge has definitely erred in appreciating the
evidence of the appellant even though the respondent - husband
failed to adduce any evidence. According to him, learned Family
Court Judge has discarded the evidence of the appellant - wife
because she could not produce supporting documents in respect of
her allegations against the respondent - husband. He pointed out
that learned Family Court Judge had in fact forfeited the evidence
of the respondent - husband, but still relied on the contents of his
written statement, which was not permissible under law. He
further submitted that the appellant has also filed a civil
application for production of additional documents in respect of
allegations made by the appellant -wife as per Order XLI Rule 27 of
the CPC and the same are required to be considered by remanding
the matter back to the Family Court. According to him, the
appellant petitioner could not produce those documents as her
mental state was highly deteriorated due to loss of her son -
Ankush. As such, he mainly prayed for remand of the matter for
6 Judgment FCA 52-24.odt
fresh consideration in the light of documents which the appellant
intends to produce in the evidence. He relied on following
judgments :-
A) Union of India vs. Ibrahim Uddin and another,
(2012) 8 SCC 148;
B) Sanjay Kumar Singh vs. State of Jharkhand,
(2022) 7 SCC 247 &
C) Judgment of the Apex Court in case of
Sirajudheen vs. Zeenath and others, in Civil
Appeal No.1491of 2023 arising out of SLP
(Civil) No.22557 of 2019, pronounced on
27/02/2023.
7. As against this, the learned counsel for the respondent -
husband strongly opposed the submissions made on behalf of the
appellant. According to him, learned Family Court Judge has
rightly rejected the claim of the appellant for divorce specially by
considering her admissions in the cross-examination. According to
him, the respondent was always ready and willing to cohabit with
the appellant but she was not happy with him at Bhopal and
wanted to reside at Aurangabad separately. He pointed out that
learned Family Court Judge has come to the conclusion that the
appellant could not establish the cruelty at the hands of the
respondent - husband. So far as prayer of the appellant for
production of additional documents and evidence is concerned, the
learned counsel for the respondent - husband pointed out that the
7 Judgment FCA 52-24.odt
documents which the appellant intends to adduce in the evidence,
were already accessible to her at the time of trial before the learned
Family Court Judge. There was no due diligence on her part in
producing those documents before the trial court. Therefore, he
submitted that the production of such documents by requesting
remand of the matter, claimed by the appellant, is definitely out of
scope of Order XLI Rule 27 of CPC. As such, he claimed for
dismissal of the appeal alongwith pending civil application.
8. Heard rival submissions and also perused the entire material
on record alongwith impugned judgment with able assistance of
the learned counsel for the rival parties.
9. Though the appellant/wife is claiming that the learned Family
Court Judge has not properly appreciated her oral evidence and
dismissed her petition for grant of divorce by holding that she could
not establish the aspect of cruelty, but the learned counsel for the
appellant/wife mainly argued for remand of the matter back to the
learned Family Court Judge by considering it afresh in the light of
the documents which the appellant intends to file as an additional
evidence. Admittedly, the appellant is seeking decree of divorce by
making the allegations, which are already reproduced herein above.
It is equally important to note that though the respondent/
husband filed his written statement, but he did not remain present
for facing cross-examination. Further, it is not in dispute that
8 Judgment FCA 52-24.odt
since he abstained for making him available for cross-examination,
the learned Family Court Judge, by passing order below Exhibit-1
in that petition, has forfeited his defence.
10. On careful scrutiny of the impugned judgment and order, it is
evident that most of the allegations levelled by the appellant against
respondent are discarded by the learned Family Court Judge on
the basis of her admissions in the cross-examination only. Further,
it appears that some of her allegations are not believed for want of
necessary documents. It is evident from the impugned judgment
that allegations of the appellant in respect of her ill-treatment and
demand of Rs. 5,00,000/- from the respondent and his family
members have been disbelieved, by observing that despite long
period of cohabitation of 14 years, not a single complaint was filed
by the appellant, either to police or Women Grievance Redressal
Cell about the alleged cruelty and demand of money. However, on
perusal of the copies of documents which the appellant intends to
file as an additional evidence, it is clearly evident that one N.C.
Report dated 22.02.2018 was lodged by the appellant in Harsul
Police Station at Aurangabad wherein allegation of monetary
demand for purchasing vehicle from the respondent to her is made.
Further, there are also recitals in respect of abusing and threats to
kill. It is to be noted that the respondent had deposed before the
learned Family Court Judge in the year 2023. As such, it might be
9 Judgment FCA 52-24.odt
possible that at the relevant time she could not recollect about
filing such report.
11. The appellant has also placed on record copy of application
dated 20.07.2018 which is addressed to Women Grievance
Redressal Center in Police Commissioner Office, Aurangabad.
There is also endorsement of concerned office in receipt of the said
application and further date for consideration appears to be given
on 12.09.2018. On perusal of the said application, the appellant
by making similar allegations as that of her petition before the
Family Court, had asked the authority for registration of crime
against the respondent and his family members. Further, she has
also produced copies of bank statements of her brother Sachin,
who was PW-2 in the proceeding before the Family Court. There
are also documents in respect of loan through mortgage for meeting
the medical expenses, availed by parents of the appellant. In
addition to these documents, there is affidavit of uncle of appellant
stating as to how the appellant has borne entire expenses of
treatment of son Ankush and how the respondent, under the
influence of liquor, abused the appellant. Besides, there are also
screen shots of messages sent by respondent on the mobile of the
appellant in filthy language. Thus, it appears that these
documents are definitely relating to the allegations made by
appellant/wife in her original petition before the Family Court.
10 Judgment FCA 52-24.odt
12. It is also significant to note that the learned Family Court
Judge has drawn inference on the basis of admission given by the
appellant in her cross-examination. Learned Family Court Judge
despite having forfeited the defence of respondent/husband, also
considered pleading in his written statement. Thus, it appears that
even after forfeiting defence of respondent, the Family Court relied
on the contents of his written statement and drew inference that
the respondent was hospitalized from 15.02.2018 to 21.02.2018, to
conclude that she left house of respondent by leaving him in ill
condition. Further, contention of the appellant that her brother
mortgaged his flat for making arrangement of money for treatment
of son Ankush, has also been rejected by the learned Family Court
Judge for want of proper documents. Under such circumstances,
prima facie, it appears that the Family Court refused to believe the
allegation in respect of ill-treatment and expenditure for medical
treatment of son Ankush, for want of necessary documents.
13. So far as filing additional documents at the appellate stage is
concerned, it is governed by Order 41 Rule 27 of the Code of Civil
Procedure, which is reproduced as below :
"27 . Production of additional evidence in
Appellate Court -- (1) The parties to an appeal shall
not be entitled to produce additional evidence,
whether oral or documentary, in the Appellate Court,
But if--
11 Judgment FCA 52-24.odt
(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which ought
to have been admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge
or could not, after the exercise of due diligence, be
produced by him at the time when the decree
appealed against was passed, or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial
cause, the Appellate Court may allow such evidence or
document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record
the reason for its admission".
Learned counsel for the respondent strenuously argued
that the documents which the appellant intends to produce at this
juncture, were readily accessible to her, but due to her own
negligence, she failed to produce the same before the Family Court
Judge. There was no due diligence on the part of appellant, and
therefore, the aforesaid provision is of no help for the appellant.
However, if we peruse the part (b) of the aforesaid Order,
the Court is having discretion to permit the parties to produce
additional evidence for proper adjudication of the dispute between
them.
14. In the case of Union of India vs Ibrahim Uddin and
another (supra) the Hon'ble Apex Court has observed that, it is the
discretion of the appellate Court to allow production of additional
12 Judgment FCA 52-24.odt
evidence in exceptional circumstances and such discretion has to
be exercised judicially and with circumspection only where any of
the prerequisite conditions provided under Rule 27 exists. Further,
it is also observed that the application for production of additional
evidence in appellate Court should be considered at the time of
final hearing of appeal on merits. While allowing the additional
evidence, it is to be determined that such additional evidence must
have important bearing on the main issue required in the interest
of justice.
15. In view of the aforesaid observation and considering the
nature of documents which the appellant intends to produce on
record in support of her allegations in the main petition, we deem it
proper to give one more opportunity to the appellant/wife to
establish her contention in respect of her alleged mental and
physical harassment at the hands of respondent/husband, by
directing the learned Family Court Judge to decide the petition
afresh by allowing the appellant to lead additional evidence for
proving documents which she intends to bring on record as an
additional evidence. Hence, we pas the following order.
ORDER
(i) The appeal is partly allowed.
(ii) The impugned judgment and order dated 11.06.2024
in Petition No.A-319 of 2020 passed by the learned
13 Judgment FCA 52-24.odt
Family Court Judge, Aurangabad, is hereby quashed
and set aside.
(iii) The matter is remanded back for deciding it afresh
by permitting the appellant/wife to lead additional
evidence in support of her allegations in the petition.
(iv) Needless to say that, the respondent/husband is
also permitted to lead evidence in rebuttal in respect
of the evidence led by the appellant.
(v) Respondent/husband is at liberty to file additional
written statement or to adopt the written statement
already filed on record.
(vi) The Family Court shall decide the petition as early
as possible and preferably within the period of six
months from the receipt of this order.
(vii) Parties are directed to appear before the learned
Family Court Judge, Aurangabad on 02.09.2025.
(viii) The appeal and pending civil application are
accordingly disposed of.
(SANDIPKUMAR C. MORE, J.) (NITIN B. SURYAWANSHI, J.)
VS Maind/-
