Madhya Pradesh High Court
Smt Renu Unaiya vs Bharat Unaiya on 28 March, 2025
Author: Hirdesh
Bench: Anand Pathak, Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:7396
1 FA-545-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 28th OF MARCH, 2025
FIRST APPEAL No. 545 of 2024
SMT RENU UNAIYA
Versus
BHARAT UNAIYA
Appearance:
Shri Nischal Raje- learned counsel for appellant-wife.
Shri Keshav Pathak- learned counsel for respondent-husband.
ORDER
Per: Justice Hirdesh
The instant appeal is filed by appellant- wife under Section 19 of the
Family Courts Act against judgment and decree dated 21/02/2024 passed by
Additional Judge to the Court of Principal Judge, Family Court District Gwalior
in Case No. 1571/2023 (HMA) whereby the application filed by respondent-
husband under Section 13(1)(1-a) of HM Act seeking a decree of divorce has
been allowed.
2. It is not in dispute that both the parties entered into the wedlock on
26/02/2009 as per Hindu rites and customs.
3. In brief, the facts giving rise to present appeal are that respondent-
husband filed a divorce petition in the Family Court and pleaded that his marriage
took place with appellant-wife according to Hindu rites and customs at Gol
Padhahiya Gwalior on 26/02/2009 without dowry and there is no demand of any
NEUTRAL CITATION NO. 2025:MPHC-GWL:7396
2 FA-545-2024
kind of cash and other items. His parents had given silver and gold jewellery to
his wife after marriage. After sometime, his wife did not maintain pleasant
relationship with him and his family members. She used to quarrel with them.
Even she did not cook food and respect any one. Behaviour of his wife was very
cruel towards him and his family members. Due to their wedlock, a son who is
presently aged around 12 years old is residing with respondent and he bears all
expenses related to his education and food etc. Appellant-wife used to talk to
unknown people on phone for hours. When respondent objected, she would
become aggressive and say that he had no right to stop her. On 10/10/2021,
appellant took away silver jewellery, clothes and other valuable items with her.
She did not return after that. When, respondent went to bring her back from her
parental home, she refused to come back and said that she wants to live at her
parental home.
4. Thereafter, appellant-wife filed a false case under Section 125 of CrPC
before learned Family Court, Morena seeking maintenance wherein Family Court
directed respondent-husband to pay Rs.5000/- per month as maintenance to his
wife. Respondent and his family members several times tried to take appellant
back, but she was not ready and willing to live with him and said that she would
implicate respondent and his family members in a false and frivolous case. She is
living separately from respondent since 10.10.2021. On these grounds, respondent
filed divorce petition before the Family Court.
5. During trial, appellant did not appear before the Family Court, therefore,
an ex-parte order was passed against her on 24.01.2024 by the Family Court, as
a consequence, no response was filed by appellant in this case.
6. Family Court framed the issues on the basis of pleadings of respondent
and after taking evidence of respondent vide i mpugned judgment and decree,
NEUTRAL CITATION NO. 2025:MPHC-GWL:7396
3 FA-545-2024
allowed the application filed by him seeking a decree of divorce under Section
13(1)(i-a) of HM Act
7. Being aggrieved by impugned judgment and decree passed by
Additional Judge to the Court of Principal Judge, Family Court District Gwalior ,
appellant preferred this appeal and submitted that Family Court has committed an
error of law by granting a decree of divorce in favour of her husband in absence
of any reply/written statements on behalf of appellant which is perverse or illegal
in the eye of law. It is further submitted that Family Court has committed error in
passing ex-parte decree in favour of her husband as no cogent reason regarding
abandonment has been assigned. She is rustic and illiterate woman and has
sufficient and cogent reasons for not being able to attend the Court proceedings
due to serious health ailments and apart from sufficient cause and deficiency in
service of summons, the material placed on record by husband in ex-parte
proceedings would not entail a divorce decree in his favour. Therefore, impugned
judgment and decree passed by the Family Court is liable to be set-aside.
8 . Per contra , learned counsel for respondent supported the impugned
judgment and decree and submitted that Family Court has not committed any
error of law in passing the ex parte decree against appellant. Therefore, prayed
for rejection of this appeal.
9. Heard learned counsel for parties and perused the record as well as
documents available on record.
10. The Hon'ble Supreme Court in the case of Balwinder Kaur Vs.
Hardeep Singh, (1997) 11 SCC 701 has held as under : -
''Section 23 of the Hindu Marriage Act mandates the court
before granting decree for divorce, whether defended or not to satisfy
NEUTRAL CITATION NO. 2025:MPHC-GWL:7396
4 FA-545-2024
itself (1) if the grounds for claiming relief exist and the petitioner is
not taking advantage of his or her own wrong or disability for the
purpose of such relief and (2) the petitioner has not in any manner
been accessory to or connived at or condoned the act or acts
complained of, or where the ground of the petition is cruelty the
petitioner has not in any manner condoned the cruelty. A duty is also
cast on the court in the first instance, in every case where it is possible
so to do consistently with the nature and circumstances of the case, to
make every endeavour to bring about a reconciliation between the
parties. Under sub-section (3) of Section 23 of the Act, the court can
even refer the matter to any person named by the parties for the
purpose of reconciliation and to adjourn the matter for that purpose.
These objectives and principles govern all courts trying matrimonial
matters. The judgment of the District Judge is silent of the learned
Judge took into consideration all what is mentioned in Section 23 of
the Act. A question also arises can a party defeat the provisions of sub-
section (2) and sub-section (3) of Section 23 of the Act by remaining
ex-parte and the court is helpless in requiring the presence of that party
even if in the circumstances of the case so required. We are of the
opinion that court can in such a situation require the personal presence
of the parties. Though the proceedings were ex-parte in the case like
this the court cannot be a silent spectator and it should itself endeavour
to find out the truth by putting questions to the witnesses and eliciting
answers from them.''
(Emphasis supplied)
NEUTRAL CITATION NO. 2025:MPHC-GWL:7396
5 FA-545-2024
11. In the instant case, application under Section 13(1) of the HM Act was
filed by respondent on 24.11.2023 seeking decree of divorce before the Family
Court and thereafter notice was issued to the appellant. From perusal of order
sheet dated 22.12.2023, it appears that notice could not be served and thereafter,
the case was listed on 24.01.2024. On 24.01.2024, a service report of notice
issued to appellant has been submitted by respondent which was verified by
Court. Then, ex-parte proceedings were initiated against appellant and case was
fixed for evidence and thereafter, impugned ex parte judgment and decree was
passed in favour of respondent on 21.02.2024. It appears that appellant could not
adduce any evidence before the Family Court due to ex parte proceedings
initiated against her on the date so fixed by the Family Court, which is though a
mistake on the part of appellant, but the application filed by respondent had to be
decided by the Family Court after considering the merits of the case. Therefore, in
the interest of justice, this Court thinks appropriate that the matter may be
remanded back to the Family Court to decide the matter afresh on merits in
accordance with law after affording opportunities of hearing to both the parties
and pleadings available on record.
12. Accordingly, the appeal stands disposed of. The matter is
remanded back to the Family Court concerned with a direction to decide the
same afresh in accordance with law after affording opportunities of hearing to
both the parties and pleadings available on record. The impugned judgment and
decree dated 21/02/2024 passed by Additional Judge to the Court of Principal
Judge, Family Court District Gwalior in Case No. 1571/2023 (HMA) is hereby
set-aside. Both the p arties are directed that they shall appear before Family
Court on 17.04.2025, subject to the condition that appellant shall pay cost of
NEUTRAL CITATION NO. 2025:MPHC-GWL:7396
6 FA-545-2024
Rs.5,000/- (Rs. Five Thousand Only) to the respondent.
13. With the aforesaid directions, the appeal stands disposed of.
14. A copy of this judgment along with record be sent to the Family Court
concerned.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
Prachi
