Bombay High Court
Sayyad Lubna W/O Javed vs Sayyad Javed S/O Sayyad Khayum on 12 March, 2025
Author: R.G. Avachat
Bench: R.G. Avachat
2025:BHC-AUG:9063-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO.70 OF 2022
Sayyad Lubna w/o Javed,
Age : 29 years, Occ. Household,
R/o Road No.1, Infront of Hasmiya
Masjid, Vyankatesh Nagar, Latur,
Tq. and Dist. Latur.
...APPELLANT
(Wife)
-VERSUS-
Sayyad Javed s/o Sayyad Khayyum,
Age : 34 years, Occ : Business,
R/o Plot No.67, Infront of Aziz Vila House,
Jalan Nagar, Backside of Railway Station,
Aurangabad.
...RESPONDENT
(Husband)
...
Shri Hanumant P. Jadhav, Advocate for the Appellant/ Wife.
Shri Yogesh B. Bolkar, Advocate for the Respondent/ Husband.
...
CORAM : R.G. AVACHAT
&
PRAFULLA S. KHUBALKAR, JJ.
DATE : 12th March, 2025.
JUDGMENT (Per Prafulla S. Khubalkar, J.) :
-
1. Heard the learned counsels for both sides.
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2. This appeal was admitted on 14.10.2022. The appeal
is taken up for final hearing.
3. By the instant appeal, the appellant/ wife has
challenged the judgment and order dated 23.08.2018 passed by
the Family Court, Aurangabad, in Petition No.A-80/2018, which
was a petition filed by the respondent/ husband seeking
restitution of conjugal rights.
4. By the impugned judgment and order, the petition
was allowed directing the appellant/ wife to resume conjugal
society of the husband within a period of two months. The
primary ground of challenge is that the petition was decided
without service of notice upon the appellant/ wife and resultantly
an ex-parte judgment and order is passed.
5. The learned Advocate Shri Jadhav for the appellant/
wife vehemently submits that the impugned judgment and order
is unsustainable in law being based on an erroneous approach.
The impugned judgment is an ex-parte decision without service
of notice upon the appellant herein and without considering the
reasons for non appearance of the wife. He submits that the
Family Court has arrived at unilateral conclusion based on
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uncontroverted testimony of the husband and his father. The
Family Court has failed to appreciate that the wife was not
served with proper notice and that she was unable to attend the
court on account of birth of a child to her. He submits that the
Family Court accepted entire version of the husband and without
any cogent evidence, straightaway concluded that the wife has
withdrawn from company of the husband and, therefore, the
husband was held to be entitled for decree of restitution of
conjugal rights.
6. Per contra, the learned Advocate Shri Bolkar for the
respondent/ husband justifies the impugned judgment and order.
He submits that the wife had failed to avail opportunity of
participating in the proceedings and the Family Court has rightly
appreciated evidence before it. He submits that the impugned
judgment is based on evidence before the Family Court and
needs no interference at all.
7. We have considered rival submissions and perusal
the appeal paper book.
8. A perusal of the impugned judgment shows that it is
an ex-parte judgment wherein, the Family Court has observed
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that the wife had not appeared despite service of notice. It has to
be seen that the wife had filed a separate proceeding before the
Family Court at Latur bearing Petition No.E-25/2018 claiming
maintenance under Section 125 of the Code of Criminal
Procedure, 1973, for herself and her two children, one is aged
four years and another is four months. The wife was prosecuting
this petition claiming maintenance through a lawyer and,
therefore, her failure to appear in the proceedings filed by the
husband at Aurangabad cannot be considered to be intentional
avoidance of the proceedings. The wife has categorically raised
the ground that she was not served with the notice in Petition
No.A-80/2018 and could not attend the said proceedings filed by
the husband. It is undisputed that the appellant/ wife had
delivered a child on 27.05.2014 and she was required to take care
of new born child. This has to be considered to be a genuine
reason for the wife not prosecuting the proceedings before the
Family Court at Aurangabad.
9. It is pertinent to note that in the proceedings filed by
the wife and her children claiming maintenance, the husband has
appeared and contested the said proceedings. He produced the
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judgment of Petition No.A-80/2018 (impugned judgment) before
the Family Court at Latur and opposed the petition by pointing
out the findings of the Family Court at Aurangabad about
withdrawal of company by the wife. The Family Court at Latur
treated the findings to be binding and with this observation, it has
refused maintenance to the wife. As such, the finding about
withdrawal of company by the wife, which is infact in an ex-
parte proceeding based on unchallenged evidence of the husband,
is made the basis to conclusively decide that the wife is not
entitled for any maintenance. In this regard, we are of the
considered view that the findings of the Family Court at
Aurangabad in an ex-parte proceeding about withdrawal of
company by the wife, could not have been considered to be
binding in the proceeding under Section 125 of the Code of
Criminal Procedure filed by the wife before another Family
Court. Although the instant appeal is not dealing with the
challenge to the judgment of the Family Court at Latur denying
maintenance to the wife, it has to be noted that the findings of the
Family Court at Latur have severe consequences upon the wife,
to the detriment of her rights.
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10. A perusal of the impugned judgment shows that the
Family Court has straightaway accepted unchallenged evidence
of the husband and concluded that the wife has left the company
of the husband. In a proceeding which is conducted ex-parte, the
Trial Court is expected to be more cautious while relying and
accepting the version of the witness, who is not cross-examined.
The Family Court has simply believed evidence of the husband
to conclude that the wife has left company of the husband
without any genuine reason and passed the decree of restitution
of conjugal rights.
11. It has to be noted that the wife had earlier issued a
notice dated 06.02.2018 to the husband calling upon him to take
her back for cohabitation. By this notice, she expressed her
readiness to resume matrimonial life with the husband. This
notice was served upon the husband and he had replied, but
failed to bring the wife back to home for cohabitation. Although
the Family Court has referred to this aspect in paragraph No.16
of the impugned judgment, however, brushed aside this crucial
aspect by simply observing that the wife has not come before the
Court for proving the said notice. It has to be seen that the
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husband has not disputed the receipt of this notice and this was
crucial aspect demonstrating the conduct of the wife.
12. In view of the above, we are of the view that the
approach adopted by the Family Court is erroneous. In view of
the grounds raised by the wife including the circumstances of
birth of a child, we deem it appropriate to remand the matter to
the Family Court, Aurangabad, so that the wife should be
afforded an opportunity to participate in the proceedings by filing
her Written Statement and leading evidence. We find this case to
be a fit case for remand. Thus, the impugned ex-parte judgment
and order passed by the Family Court at Aurangabad deserves to
be quashed and set aside. Hence, we pass the following order:
ORDER
(a) This Family Court Appeal is partly allowed.
(b) The impugned judgment and order dated 23.08.2018
passed by the Family Court, Aurangabad, in Petition No.A-
80/2018, is quashed and set aside.
(c) Petition No.A-80/2018 is remanded to the Family
Court, Aurangabad, for a fresh decision after affording an
opportunity to the appellant/ wife to file her Written Statement
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and lead evidence.
(d) Parties are directed to appear before the Family
Court at Aurangabad on 07th April, 2025.
(e) The Family Court is directed to expedite the
proceedings and take a decision afresh.
kps ( PRAFULLA S. KHUBALKAR, J.) ( R.G. AVACHAT, J.)
