Gujarat High Court
Poonamben Ravikumar Patel vs Ravikumar Amratlal Patel on 22 August, 2023
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 238 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/FIRST APPEAL NO. 238 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
POONAMBEN RAVIKUMAR PATEL
Versus
RAVIKUMAR AMRATLAL PATEL
==========================================================
Appearance:
MR KEYUR A VYAS(3247) for the Appellant(s) No. 1
MR JF MEHTA(461) for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 22/08/2023
ORAL JUDGMENT
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
(PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)
1. The present first appeal has been filed by the appellant-
wife under Section 19 of the Family Courts Act challenging the
judgment and decree passed by the learned Principal Judge,
Family Court at Ahmedabad dated 09.03.2022 in the Family
Suit No.1009 of 2019.
2. The appellant-Poonamben Ravikumar Patel is the original
defendant and the respondent-Ravikumar Amratlal Patel is the
original plaintiff in the main proceedings and, therefore, for the
sake of convenience and brevity, they shall hereinafter be
referred to as the original defendant and the plaintiff
respectively. The Code of Civil Procedure, 1908 shall
hereinafter be referred to as the 'Code' and the Hindu
Marriage Act, 1955 shall hereinafter be referred to as the 'Act'.
3. The facts giving rise to the present appeal may be
summarized as under;
3.1 The marriage between the original defendant and the
plaintiff was solemnized on 22.05.2017 as per the Hindu Rites
and Rituals. After the marriage, the original defendants came
to her matrimonial home and started residing with the plaintiff.
3.2 It is alleged by the plaintiff in the suit that after the
marriage, the original defendant stayed with him for a period
of only one week and thereafter went to her parental home.
There was no cohabitation between them as husband and wife.
It is also alleged that the defendant-wife disliked him
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
3.3 Thereafter, after a period of some time, the defendant
came back to her matrimonial home, however, the conduct
and behavior of the defendant-wife remained unchanged.
3.4 It is also alleged that the defendant-wife was not doing
the household work and frequently insisting the plaintiff-
husband to take her for outing to see pictures and to take
dinner in the hotels. It is also the case of the plaintiff-husband
that the defendant-wife demanded one smart phone and
accordingly, he purchased one smart phone and handed over
to the defendant. However, the defendant-wife always
remained busy with her mobile phone and used to talk with
some unknown persons, namely, Amit and Raj.
3.5 The plaintiff-husband, therefore, asked the defendant-
wife about the same, upon which, the defendant got angry and
told him that they are her ex-husbands with whom she had got
married and separated subsequently by obtaining divorce. The
defendant also told him that he has heavy body and bulky
physique and she did not like and have an interest in him.
3.6 As per the case of the plaintiff, one day he received a
phone call from one unknown person who introduced him as
the husband of the defendant and threatened him to leave the
company of the defendant. It is alleged in the suit that before
getting married with him, the defendant-wife already got
married with four persons and also taken divorce from them
and the said fact was suppressed by the defendant-wife at the
time of getting married with him. Not only that on the contrary,
she has informed that she is unmarried despite the fact that
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
she was divorcee and thereby perpetrated fraud and cheating
with the plaintiff-husband.
3.7 It is alleged in the suit that the defendant-wife previously
married with Pradip, Hemant, Raj and Amit. She had also taken
divorce from them. The plaintiff-husband also gave notice
dated 01.11.2018 to the wife but she did not give any reply to
the same.
3.8 The plaintiff husband then preferred the suit before the
Family Court at Ahmedabad seeking decree of divorce. The
learned Family Court allowed the suit filed by the plaintiff and
dissolved the marriage by declaring the marriage between the
plaintiff and the defendant as null and void.
3.9 Being aggrieved by and dissatisfied with the said
judgment and decree, the appellant is here before this Court
with the present first appeal.
4. Learned advocate Mr. Keyur Vyas who appears on behalf
of the appellant-wife has submitted that the impugned
judgment and decree passed by the learned Family Court is
unjust, unfair and unreasonable and not based upon the sound
principles of law. Learned advocate Mr. Vyas has submitted
that an ex-parte judgment and decree was passed by the
learned Principal Judge, Family Court at Ahmedabad without
being providing an adequate opportunity of hearing to the
appellant as well as leading evidence, to make cross-
examination of the witnesses produced by the plaintiff-
husband and to confront and contradict the evidences laid by
the plaintiff and thereby the valuable right of the appellant-
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
wife to make cross-examination of the witnesses was
jeopardized and, therefore, the same is required to be quashed
and set aside. Learned advocate Mr. Vyas has submitted that
the respondent-husband has filed petition under Section 11 of
the Hindu Marriage Act, 1955 for the purpose of declaration of
registration of solemnization of marriage as null and void.
Learned advocate Mr. Vyas has further submitted that
pursuant to the filing of the suit, notice came to be issued
which was duly served to the appellant-wife and she appeared
before the concerned family court. Learned advocate Mr. Vyas
has also submitted that the sequence of events of incident are
required to be seen for the purpose of deciding the fate of the
matter. He has submitted that the respondent-husband has
filed the suit on 03.05.2019 and on 26.09.2019, as per the
directions issued by the Hon'ble Court, the appellant-wife
personally remained present and, thereafter, the matter was
sent before the conciliator. Thereafter, on number of
occasions, the matter was listed and the appellant-wife
personally remained present before the conciliator. However,
as the dispute between the husband and wife remained
unresolved, the matter was once again referred to the
concerned Family Court at Ahmedabad. Learned advocate Mr.
Vyas has also submitted that, thereafter, for a considerable
long period of time, the matter could not have been proceeded
with by the learned Principal Judge, Family Court due to spread
of deadly virus of Covid-19, the Central Government as well as
the State Governments of the Country had issued certain
directions and notifications restricting the movement of the
citizens of the Country for a particular period of time. Due to
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
the said heavy spread of Covid-19 Pandemic, the functioning of
the courts were also declared to be closed down for a certain
period of time. Therefore, the appellant-wife was under an
impression that as and when the situation would become
normal, a fresh summons would be issued to her, and under
that impression, she could not remain present before the court
below either in person or through an advocate, and in absence
of herself or her representative, the matter was proceeded ex-
parte and the impugned judgment and decree came to be
passed.
5. Learned advocate Mr. Vyas has submitted that the
appellant-wife is completely disagreed with the grounds
mentioned in the suit and due to circumstances beyond her
control, she could not be able to prepare and submit reply
before the court below, and in absence of any opposition on
the part of the appellant-wife, straightway the trial court
proceeded with the matter and passed an ex-parte order.
Learned advocate Mr. Vyas has submitted that certain
important factual aspects are required to be brought on record
by way of submitting reply and to elicit the truth on record,
important questions and pointed queries are required to be
asked to the respondent-husband at the time of his cross-
examination and, therefore, to submit appropriate reply and to
cross-examine the witnesses of the plaintiff to disprove the
contents of pleadings made in the suit, adequate opportunity
is required to be given to the appellant-wife. Learned
advocate Mr. Vyas has further submitted that by passing the
impugned ex-parte judgment and decree dissolving the
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
marriage of the appellant and the respondent-husband, the
learned Principal Judge, Family Court at Ahmedabad has
permanently separated them and, therefore, in the interest of
justice, present appeal requires to be allowed and matter may
be sent back to the concerned Trial Court for deciding it afresh
by providing adequate opportunity of hearing to the appellant-
wife. Learned advocate Mr. Vyas has also submitted that it is
an admitted position of fact that after the resumption of the
regular court functioning, no fresh notice was issued to the
appellant-wife, and in absence of any notice being issued to
the appellant, she did not aware about the status of the
proceedings and, therefore, could not be able to attend the
court proceedings.
6. Learned advocate Mr. Vyas has submitted that at the
time of deciding the issue involved in the matter, the learned
Judge has solely put reliance upon the evidence produced by
the plaintiff-husband and given specific finding that the
appellant wife was not interested in living happily married life
with the plaintiff-husband. The said finding given by the
learned court below is not in consonance with the evidence
available on record.
7. In such circumstances, referred to above, learned
advocate Mr. Vyas prays that there being merit in this appeal
the same be allowed and the matter may be sent back to the
Trial Court for fresh consideration.
8. On the other hand, learned advocate Mr. J.F. Mehta
appearing on behalf of the respondent-husband has submitted
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
that immediately after the registration of the suit under the
provisions of the Hindu Marriage Act before the Family Court,
notice was issued which was duly served to the appellant-wife.
The appellant-wife appeared before the court below and her
presence was also noted down. The said fact is reflected from
the Rojkam. Learned advocate Mr. Mehta has submitted that,
thereafter, matter was referred to the conciliator with the sole
intention that the dispute between the parties may resolve,
however, the said attempt had become unsuccessful.
Therefore, the matter was once again referred to the
concerned Family Judge by the conciliator. Thereafter, the
appellant-wife continuously remained absent in the
proceedings before the court below. Therefore, an application
was preferred by the plaintiff-husband to close the right of the
appellant-wife to submit written statement and considering the
said application preferred by the respondent-husband, the
court below passed an order on the very same day by allowing
the said application and thereby closed the right of the
appellant-wife of submitting the written statement.
Thereafter, the matter was kept for the purpose of framing of
the issue and, accordingly, the court below framed the issue
and, thereafter, due to Covid-19 pandemic, lock-down was
declared and certain restrictions were imposed by the Hon'ble
High Court with regard to functioning of the courts. Learned
advocate Mr. Mehta has further submitted that thereafter,
courts were started functioning regularly, however, the
appellant-wife could not remain present and, therefore, the
concerned Judge had no other option left except to conduct the
proceedings ex-parte. Not only that, at the time of submission
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
of examination-in-chief on affidavit, which was duly sworn and
affirmed by the plaintiff-husband, a copy of the said
examination-in-chief was also sent to the appellant-wife
through R.P.A.D Post with an intention to bring to her notice
that proceedings are still going on and she has to attend the
proceedings, however, despite the said fact, she has chosen
not to appear either in person or through an advocate.
Therefore, it can safely be said that all possible attempts were
made by the respondent-husband to bring to the notice of the
appellant-wife about the continuation of the proceedings but is
in vain. Learned advocate Mr. Mehta has submitted that
despite the said fact, she did not turn up and could not remain
present and, therefore, trial was proceeded ex-parte and order
was passed.
9. Learned advocate Mr. Mehta has further submitted that,
in fact, marriage was solemnized between the appellant and
the respondent on 22.05.2017, however, at the time of
solemnization of marriage, the earlier marriage of the
appellant-wife was in existence and the said fact was
suppressed by the appellant-wife and, therefore, considering
the above stated factual aspect of the matter, the learned
Judge has passed just, fair and reasonable order which does
not require any interference at the end of this Court.
10. In such circumstances, referred to above, learned
advocate Mr. Mehta prays that there being no merit in this
appeal, the same be rejected.
11. Heard the learned advocates appearing for the respective
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
parties.
12. As the issue involved in this matter is in a very narrow
compass, and upon a joint request made by the learned
advocates for the respective parties to finally dispose of the
appeal, we took up the matter for final hearing.
13. Before adverting to the rival submissions canvassed by
either side, we would like to mention certain chronological
events of factual aspects occurred in the present matter before
the Family Court. The suit is filed by the husband on
03.05.2019 before the Family Court at Ahmedabad. On the
same day, notice was issued, which was made returnable on
16.08.2019. Thereafter, on 16.08.2019, as the court was not
available on that day, the matter was kept on 26.09.2019. On
26.09.2019, it is found out from the Rojkam that the appellant
and respondent both were present and the matter was referred
to the conciliator and kept on 18.11.2019. On 18.11.2019,
both the parties were not present and, therefore, the matter
was kept for the report of the conciliator as well as submission
of the written statement on 17.01.2020. On 17.01.2020, the
plaintiff-husband was present and the defendant-wife was
absent. The plaintiff-husband has submitted an application
vide Exh.10 to close the right of the defendant-wife about filing
and submitting the written statement which came to be
allowed and the matter was kept on 05.03.2020. On
05.03.2020, the matter was kept for framing issues, and
record shows that on that day, the plaintiff was present and
the defendant was absent and the matter was adjourned to
09.06.2020. Thereafter, between 09.06.2020 and 28.06.2021
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
due to heavy spread and devastating effect of pandemic
corona virus, the functioning of all the courts were ordered to
be closed down as per the guidelines and SOPs issued by the
Hon'ble Gujarat High Court and on 28.06.2021, the family
court had framed the issue and matter was kept on
12.08.2021. Thereafter, for recording evidence, on number of
occasions, the matter was listed, however, on account of
continuous absence of the defendant-wife, the proceedings
were continued ex-parte. Nowhere in the body of the Rojkam,
it is found that after the withdrawal of restrictions of Covid-19,
fresh notice was issued to the defendant-wife which was duly
served upon her, and in absence of the defendant-wife, per
contra the trial court proceeded with the matter ex-parte.
14. Learned advocate Mr. Mehta who appears on behalf of
the plaintiff-husband has submitted that after the framing of
the issue, the matter was reached at the stage of leading
evidence on the part of the plaintiff, and at the time of
submission of copy of the examination-in-chief in the form of
affidavit, one copy was also sent at the address of the
defendant-wife through R.P.A.D intimating her about the
continuation of the proceedings filed by the plaintiff-husband
and despite the said fact, she did not remain present either in
person or through her advocate. Learned advocate Mr. Mehta
has straneously submitted that the said fact was also brought
to the notice of the concerned court by way of preferring pursis
which was part and parcel of the record. Learned advocate Mr.
Mehta has submitted that it is clearly stated in the pursis by
the husband that an affirmed copy of the examination-in-chief
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
was sent to the defendant-wife through R.P.A.D and the copy
of the R.P.A.D receipt is also produced along with the separate
list and, therefore, it cannot be said that wife was not at all
aware about the continuation of the proceedings before the
family court. However, Mr. Mehta has fairly submitted that it is
true that no fresh notice was issued to the defendant-wife after
the withdrawal of the Covid-19 restrictions. Learned advocate
Mr. Mehta has candidly accepted the position and submitted
that it is true that the entire proceedings were tried and
conducted ex-parte by the concerned court and if this Court is
of the opinion that matter is required to be remitted, in that
event, he requests that time frame schedule may be issued
and the concerned court may be directed to conclude the
proceedings as early as possible, preferably within a period of
six months.
15. We have heard the contentions raised by the learned
advocate for the rival parties and gone through the materials
available on record, more particularly, the pursis submitted by
the husband before the Principal Judge, Family Court stating
that copy of the examination-in-chief in the form of affidavit
already sent to the defendant-wife through R.P.A.D Post and
copy of the R.P.A.D receipt is also produced by way of separate
list which is also part and parcel of the record. We have gone
through the said documents and prima facie of the opinion that
simply by submitting the receipt of the R.P.A.D, it cannot be
said that the copy of the said document is duly served to the
defendant-wife or not. It is the duty casted on the head of the
incumbent to produce the acknowledgment receipt showing
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
that the copy of the documents which was forwarded through
R.P.A.D. is duly served to the defendant wife. Admittedly,
herein in the case on hand, no acknowledgment receipt is
produced along with the list. Secondly, it is also a debatable
issue that the copy of the examination-in-chief on oath was
there in the envelope or not and, therefore, there are so many
debatable issues and the said issue cannot be decided simply
on the basis of the production of certain documents. The said
facts can be verified by way of providing an adequate
opportunity of hearing to the defendant-wife and after leading
appropriate evidence in that regard, and in absence of any
material that issue cannot be decided.
16. At this juncture we would like to put reliance upon certain
case laws decided by the Hon'ble Apex Court. The Hon'ble
Apex Court, in catena of decisions, has emphasized that every
conclusion must be well supported by adequate reasons and if
issue is arising that case has not been properly dealt with,
same would be a relevant circumstance for remanding the
matter back for fresh consideration. Relevant observations
contained in the decision delivered by Hon'ble the Apex Court
in the case of State of Orissa and others v. Chandra
Nandi, reported in (2019) 4 SCC 357, Hon'ble the Apex Court
has observed in paragraph 10 as under:
"10. This Court has consistently laid down that
every judicial or/and quasi−judicial order passed by
the Court/Tribunal/Authority concerned, which
decides the lis between the parties, must be
supported with the reasons in support of its
conclusion. The parties to the lis and so also the
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
appellate/revisionary Court while examining the
correctness of the order are entitled to know as to
on which basis, a particular conclusion is arrived at
in the order. In the absence of any discussion, the
reasons and the findings on the submissions urged,
it is not possible to know as to what led the
Court/Tribunal/Authority for reaching to such
conclusion. (See − State of Maharashtra vs. Vithal
Rao Pritirao Chawan, (1981) 4 SCC 129, Jawahar Lal
Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222,
State of U.P. vs. Battan & Ors., (2001) 10 SCC 607,
Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11
SCC 519 and State of Orissa vs. Dhaniram Luhar,
(2004) 5 SCC 568)."
17. Yet another judgment delivered by Madras High Court
since relevant is taken note of by the Court and relevant
paragraph-6 is reproduced hereunder:-
"6. In terms of the above provisions, every
judgment should contain a concise statement of the
case, the points for determination, decision thereon
and the reasons for such decision. A judgment which
does not contain the bare minimum facts, the point
for determination, the evidence adduced and the
application of those facts and evidence for deciding
the issue would not qualify it to be called as
"judgment". The judgment should contain the brief
summary of the facts, the evidence produced by the
plaintiff in support of his claim and the reasoning of
the learned Judge either for decreeing the suit or its
dismissal. The Civil Procedure Code does not say
that the Court is bound to grant a decree in case the
defendant is absent. Judgment means cognitive
process of reading a decision or drawing conclusion.
Judgment is the basic requirement for a court and it
means a decison or conclusion reached after
consideration and deliberation. To put it differently,
the basics of a judgment are to support by most
cogent reasons that suggest themselves the final
conclusion at which the Judge has conscientiously
arrived."
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
18. Here in the case on hand, the learned Trial Judge has not
discussed anything on facts and circumstances of the case in
the impugned judgment and straightway passed an ex-parte
order on the basis of evidence produced by the respondent-
husband.
19. Considering the peculiar facts of the present case, we are
of the opinion that this is a fit case wherein this Court can
exercise its discretionary power as the entire proceedings were
conducted ex-parte and the impugned judgment and decree
was passed in the absence of the defendant-wife, declaring the
marriage as null and void. Without touching the merits and de-
merits of the present case, simply on the ground that the
entire proceeding were conducted ex-parte, we are inclined to
remand the matter back to the concerned trial court to decide
it afresh after providing ample opportunity of hearing as well
as leading evidence to both the parties.
20. In view of the aforesaid discussion, we are of the opinion
that the present appeal deserves to be allowed and the
appellant-wife is required to be heard and permitted to lead
evidence in her defense.
21. With the above observation and direction, the present
first appeal stands allowed. The impugned judgment and
decree dated dated 09.03.2022 passed by the learned
Principal Judge, Family Court, Ahmedabad in Family Suit
No.1009 of 2019 is hereby quashed and set aside and the
matter is remanded back to the Court concerned to decide the
issue afresh after giving an appropriate opportunity of being
NEUTRAL CITATION
C/FA/238/2023 JUDGMENT DATED: 22/08/2023
undefined
heard to the parties. The learned Judge concerned shall decide
the matter afresh in accordance with law on its own merits
without being influenced by the observation made in the
present order, preferably within a period of SIX MONTHS from
the date of receipt of copy of this order. Both the parties shall
cooperate in the proceedings pending before the learned Judge
concerned to conclude it within aforesaid period. It is clarified
that this Court has not examined merits or demerits of the
case of the appellant.
22. In view of the order passed in the main appeal, the
connected civil application does not survive and is disposed of
accordingly.
(ASHUTOSH SHASTRI, J)
(DIVYESH A. JOSHI,J)
VAHID
