Judgment:
D.K. Trivedi, J.
1. The appellant-original respondent wife has filed this appeal challenging the judgment and decree passed by the learned Principal Judge, Family Court, Bombay dated 26.4.1994 wherein the learned Judge has allowed the petition filed by the husband. As per the decree of the Family Court, the marriage solemnised between the appellant and respondent dated 22.1.1990 was stand dissolved and decree for divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 was passed and while granting the decree, the petitioner-husband was directed to pay Rs. 400/- per month as permanent maintenance to the respondent-wife and daughter.
2. The main contention in the present appeal highlighted by the appellant is to the effect that no opportunity was given to the appellant-wife and the Family Court has proceeded with the petition filed by the husband ex parte and the Court has granted petition for divorce in favour of the appellant-husband. Accordingly the appellant's grievance is to the effect that the Trial Court has committed error in granting decree for divorce as prayed for by the respondent-husband. As the Family Court has proceeded with the petition ex-parte, the appellant prays that the said judgment and decree be set aside and the appellant permitted to lead evidence and the Family Court be directed to decide the matter in accordance with law.
3. The learned Counsel appearing on behalf of the respondent-husband is not in a position to assail the judgment of the Trial Court and submitted that necessary directions be given to the Family Court to decide the matter expeditiously in accordance with law.
4. The learned Advocate appearing on behalf of the appellant took us through the record and also the Roznama of the case. We have perused the petition for divorce filed by the respondent-husband and the written statement filed by the wife. As reflected from the record that the marriage of the appellant and the respondent were solemnised on 22.2.1990. Out of the said wedlock the appellant gave birth to a female child named Akanksha on 20.1.1991. The respondent-husband has filed the petition before the Family Court at Bombay on 4.2.1993 praying for divorce and the petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 was presented.
5. As per the petition, the petitioner-husband and also prayed for the custody of a minor child Akanksha aged about 2 years. On 15.2.1993 the Family Court has issued summons in favour of the petitioner by registered post A.D. The matter was notified before the Family Court on 3.4.1993 where both the parties were present and the matter was referred to for conciliation before Mrs. Desai. On behalf of the respondent-wife and application, Exhibit-3 was submitted to file written statement and the matter was adjourned by the Family Court on 12.5.1993. On behalf of the respondent-wife written statement, Exhibit-4 was submitted and the report of Mrs. Desai was received at Exhibit-5 and the Court kept the matter for framing issues on 7.8.1993. As can be seen from the Roznama, on 7.8.1993 the parties were present. However, the matter was adjourned for framing issue and the matter was kept on 7.10.1993. Even on the adjourned date i.e. on 7.10.1993, though the parties were present the Family Court adjourned the matter to 28.12.1993 for framing issues. Thereafter on 28.12.1993 the Presiding Officer was on leave. Though the parries were present, the matter was adjourned for framing issues to 2.2.1994. On 2.2.1994 the issues were framed atExhibit-6 and the matter was kept for hearing on 15.3.1994. On 15.3.1994, the parties were present before the Court and application, Exhibit-7 was submitted by the petitioner-husband for an adjournment and application, Exhibit-8wassubmitted by the respondent-wife for permission for representing the case through Advocate. As per the request of the appellant-husband, the adjournment was granted and the matter was kept for hearing on 26.4.1994. On that day i.e. on 26.4.1994, the petitioner-husband was present. However the wife was absent. On behalf of the petitioner-husband Vakalatnama on Shri N.N. Walawalkar was filed and the Family Court has proceeded ex-parte and the evidence of the appellant-husband was recorded at Exhibit-10 and on the very day the Family Court has granted petition for divorce filed by the husband.
6. The evidence of the respondent-original petitioner Arun Raghunath Kadu recorded at Exhibit-10 shows that their marriage took place on 22.1.1990 at Ghatkopar according to Hindu Vedic Rites and from the beginning the appellant-original respondent was saying that she did not want to live with the parents of the husband and she was not behaving properly. She also used to give filthy abuses to him and also to his parents. She is insisting that the parents should do begging and purchase a room for him. According to the husband, she used to insult him in the presence of neighbours and she used to go to her parents house without informing the husband. He has narrated the incident which took place on 6.5.1990 when the parents of the wife came at 11.30p.m. and wanted to take the wife with them as there was some marriage and they quarrelled with the husband and took the wife at 11.45 p.m. and the wife took her all ornaments and clothes. Since that day the respondent-wife is staying with her parents and she need not come back to the matrimonial home. Even the efforts were made to bring her back. However, she refused. Even the friend of the husband one Vilas Ghag was sent to bring her. However, she had refused. On 20.11.1990 the wife delivered a daughter viz. Akanksha. There was a joint meeting on 30.12.1990 and in the said meeting her parents had agreed to send her. However, she did not come and accordingly the petition for divorce was filed. The petitioner-husband is working in the Pay and Accounts Office, Akashwani as a peon and gets Rs. 1,550/-. According to the husband, the respondent was doing some job and he has also shown his willingness to pay Rs. 400/- as permanent maintenance to the respondent and her daughter.
7. As stated earlier, that the Court has proceeded with the case in the absence of respondent-wife though the application, Exhibit-8 was filed by the respondent-wife for seeking permission for appearance of the Advocate. It is also to be seen that the application for adjournment filed by the husband at Exhibit-7 was granted. Even on behalf of the petitioner-husband on 26.4.1994 Vakalatnama of Advocate Mr. Walawalkar was filed and the Court has proceeded with recording of the evidence of the petitioner-husband. Written Statement, Exhibit-4 was filed by the wife in detail denying the allegations made in the petition by the husband. It is the case of the appellant-wife that no opportunity was given to lead evidence and even the evidence of the respondent-husband was recorded in her absence and the Court was proceeded with the judgment on the very day when the evidence-in-chief was completed on 26.4.1994. As reflected in the judgment at paragraph-3, the Court has observed that the Court has fixed the matter for hearing and the respondent remained absent and proceeded further ex-parte against her. Thereafter the presiding officer has proceeded while appreciating the evidence of the petitioner-husband and observed that the conduct of the respondent-wife was grossly excessive and observed that it was sufficient to destroy the legitimate end and object of the matrimony and held that the respondent-husband treated the petitioner with cruelty. The Court has further observed that the contention of cruelty does not arise as the parties are living separate. As observed by the learned Judge that the respondent-wife lived with her parents since 6.5.1990 and the evidence does not show that she has any reasonable cause to live separately from the husband and recorded the finding that the respondent-wife has deserted the petitioner-husband. The Court has accordingly granted decree of divorce as prayed for by the husband and granted maintenance at the rate of Rs. 400/- per month by way of permanent maintenance to the wife and daughter. During to hearing the learned Advocate appearing on behalf of the appellant-wife has submitted that as can be seen from the written statement, Exhibit-4 the wife has denied the allegations made by the husband in his petition. He submitted that when an application for permission to engage an Advocate was submitted and when the matter was kept for hearing as the appellant-wife was absent, the Court ought to have granted time by adjourning the matter and even on that day on behalf of the respondent-husband Vakalatnama of the Advocate was filed. The Court has thereafter proceeded with the recording of the evidence of the husband at Exhibit-10. As the appellant-wife was not present, the husband was not cross-examined and the Family Court on the very day has granted the petition in favour of the husband while granting divorce.
8. On reading the judgment and the pleadings, we are of the view that as can be seen and as we have demonstrated hereinabove that the petition for divorce was filed before the Family Court on 4.2.1994 and after the service in favour of the wife she appeared in a proceeding and written statement was submitted on 12.5.1993 denying the allegations made in the petition. Even when the matter was adjourned from time to time she always used to remain present before the Family Court. As can be seen that even after filing of the written statement on 12.5.1993 when the Court had kept the matter for framing issues, the Family Court had not framed the issues till 2.2.1994.
9. In our view, the Family Court ought not to have proceeded with the case on 26.4.1996 when the Family Court granted application submitted by the wife, Exhibit-A for permission to represent her case through Advocate. Considering the pleadings of the judgment and the Family Court, we are of the view that the Family Court has while proceeding with the case was recorded an order ex-parte and proceeded further with the recording of the evidence of the respondent-husband. It is very clear that the appellant-wife has been deprived of representing her case when she has denied the allegations made by the husband, as can be seen from the written statement, Exhibit-4.
10. In our view, the judgment and decree of the Trial Court which proceeded ex-parte, deserves to be set aside. As the Family Court proceeded ex-parte without giving opportunity to the appellant-wife, it is necessary that the Family Court to proceed with the case by giving opportunity to the parties and dispose of the same afresh in accordance with law. We may make it clear that we are not expressing any opinion on the merits of the matter and accordingly the appeal is allowed. We are told that as per the order passed by this Court on 16.2.1995, the respondent-husband was directed to pay the maintenance amount as granted by the Family Court and the same is being paid by the husband. As we are setting aside the ex-parte decree, it will be in the interest of justice that the Family Court is directed to dispose of the case afresh in accordance with law and the same be disposed of by the end of August, 1997.
11. The parties are at liberty to adduce evidence afresh. The appeal is allowed. There will be no order as to costs. The parties are directed to appear before the Family Court on 7.4.1997 and the Family Court is accordingly directed to proceed with the case and dispose of the same by the end of August, 1997.
The office is directed to send back the records and proceedings forthwith. Parties to co-operate.