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Chindu Khema Patil Vs. Sarala (Sou.) Chindu Patil - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 490 of 1982
Judge
Reported in1983(1)BomCR340
ActsHindu Mariage Act, 1955 - Sections 11
AppellantChindu Khema Patil
RespondentSarala (Sou.) Chindu Patil
Appellant AdvocateR.D. Rane, Adv.
Respondent AdvocateP.P. Chirayath, Adv.
DispositionAppeal dismissed
Excerpt:
.....court set aside ex parte order of trial court giving respondents opportunity to participate in divorce proceedings and sent back matter to trial court for reconsideration - appellants appealed against order of district judge before court - appellants contended that it was not open to district judge to reconsider rejection of wife application - contended that judge not considered evidence in matrimonial proceedings while deciding appeal - held, order of district judge just and fair considering absence of opportunity to wife to participate in proceedings before trial court. - - here is a case where for very good reasons and for reasons more than justified the learned district judge has in the interests of justice set aside the decree of divorce and has sent back the matter to the..........against the said decree the filed civil appeal no. 109 of 1981 to the district court, jalgaon. the learned district judge, who heard the said appeal, allowed the same, set aside the trial court's decree and sent back the proceedings to the trial court for hearing and decision of the husband's matrimonial petition on its own merits and in accordance with law. it is against order that the husband has preferred the present appeal.3. contention of the learned counsel for the appellant-husband is that the impunged order is not justified and that notwithstanding the fact that the matrimonial petition was heard and decided on affidavits only on the side of the husband and in the absence of the wife the learned district judge should have considered the said affidavits and then decided the appeal.....
Judgment:

S.C. Pratap, J.

1. This appeal is directed against the other order dated June 28, 1982 passed by the learned District Judge, Jalgaon, in the Civil Appeal No. 109 of 1981.

2. The appeal arises out of matrimonial proceedings. The appellant-husband had filed against his wife-respondent herein Hindu Marriage Petition No. 246 of 1980 in the Court of the Civil Judge, (Senior Division), Jalgaon, for dissolution of marriage by decree of divorce. This petition was filed in August 1980. The wife was served with the writ of summons thereof. However, as she was absent, she was marked ex-parte. This was on November 11, 1980. On December 6, 1980 evidence on affidavit was taken in the husband's matrimonial petition in the absence of the respondent-wife. The matter was then posted for judgment on December 8, 1980. On the morning of that day December 8, 1980 the wife appeared in Court along with her Counsel. She filed an application (Exhibit 18) for setting aside the ex-parte order. In support, she also filed her affidavit at Exhibit 19. All these happened undisputedly before the judgement was delivered. This application of the wife was opposed by the husband. Ultimately, the learned trial Judge dismissed the wife's application (Exhibit 18) on January 30, 1981 and on the same day he decreed the husband's petition for dissolution of marriage by a decree of divorce. Against the said decree the filed Civil Appeal No. 109 of 1981 to the District Court, Jalgaon. The learned District Judge, who heard the said appeal, allowed the same, set aside the trial Court's decree and sent back the proceedings to the trial Court for hearing and decision of the husband's matrimonial petition on its own merits and in accordance with law. It is against order that the husband has preferred the present appeal.

3. Contention of the learned Counsel for the appellant-husband is that the impunged order is not justified and that notwithstanding the fact that the matrimonial petition was heard and decided on affidavits only on the side of the husband and in the absence of the wife the learned District Judge should have considered the said affidavits and then decided the appeal in question against the divorce decree on its own merits. Submission in this context is that it was not open to be learned District Judge to considered the rejection of the wife's application (Exhibit 18). All that the learned District Judge was to do was to hear and decide the same only in the light of the affidavits on record in the matrimonial petition. It is not possible to agree with this contention. Here is a case where for very good reasons and for reasons more than justified the learned District Judge has in the interests of justice set aside the decree of divorce and has sent back the matter to the trial Court for hearing and deciding the main divorce proceeding on their merits and in accordance with law after giving opportunity to the wife who had not been heard on the merits of the husband's claim for divorce. Materials show that the husband had either filed yet another matrimonial petition being Petition No. 213 of 1979 for judicial separation. In those proceedings the wife had put in her appearance, had already engaged an Advocate on her behalf and had actually participated therein. However, even while the said proceedings were pending, the husband chose to file yet another matrimonial petition and this time for dissolution of marriage by decree of divorce. In this latter divorce proceeding, the wife was no doubt served but, as submitted by her and also on her behalf, she was under the genuine and bona fide impression that the summons was in respect of the proceedings for judicial separation which were also pending. It never struck her, as would not normally strike a litigant situated in such circumstances, that the husband had even during the pendency of his judicial separation proceedings filed a second matrimonial proceedings for divorce and that the summons received by her was in respect of the divorce proceedings. Therefore, under this impression and belief and as she had already engaged an Advocates in the judicial separation proceedings the wife did not feel it necessary to go all the way from her place of residence at Mankhurd in Bombay to Jalgaon which would be at least about 250 to 300 miles and where the matrimonial proceedings were pending.

4. It, however, so happened that the wife's Advocate in the judicial separation proceedings came to know that the husband had filed a separate proceeding for divorce even during the pendency of his judicial separation proceedings. The learned Advocated immediately sent his telegram to the wife from Jalgaon to Mankhurd in Bombay. Immediately on receipt of her Advocate's telegram, the wife rushed to Jalgaon. She reached Jalgaon on the morning of December 8, 1980 and immediately on reaching Jalgaon, she contacted her Advocate and on the opening of the Court she filed her application (Exhibit 18) and her affidavit in support (Exhibit 19) for setting aside the order whereunder she had been marked absent and, therefore, ex parte. As indicated, this application was made before the judgment was delivered. On the making of this application, the learned Judge had not proceeded to pronounce the judgment in the main matrimonial proceedings. The learned Judge heard the application but thought fit to reject the same on January 30, 1981 and on the same day he decreed the husband's petition for divorce. It may also be mentioned that the wife also already filed her written statement in the divorce proceedings.

5. Such being the facts and circumstances and if considering the same the learned District Judge has though fit in the ends of justice to set aside the ex-parte order and to give the wife an opportunity of participating in the divorce proceedings for reasons which were strong and congent, surely such an opportunity provided to a spouse in a litigation relating to matrimonial status of the parties, cannot be taken away, so easily is sought to be done by the husband here. I find myself unable to accept the submission on behalf of the husband for setting aside a pre-eminently just, fair and proper order of the learned District Judge. This Court cannot ignore the nature of the proceedings and the effect and consequence thereof or the very status life and further of the wife. This Court also cannot ignore the steps taken by the wife and her diligent conduct in rushing from Bombay to Jalgaon and filing an application (Exhibit 18) and her affidavit in support (Exhibit 19) for an opportunity to participate in the matrimonial proceedings and to defend the husband's claim for divorce. Indeed, it is rather surprising that the husband should have even during the pendency of his judicial separation proceedings chosen to life proceedings for dissolution of marriage by a decree of divorce. That in law he may be entitled to do so is not relevant, while considering the merits of the impugned order. But the said fact is relevant for considering whether confusion in the mind of the wife as or it not possible and probable when she received the summons of the second matrimonial proceedings and when she thought the same to be in relation to the matrimonial proceedings pending in the Jalgaon Court. All in all, therefore, justice has been done. All that happened by virtue of the impugned order is that the ex-pate orders is set aside and parties are directed to fight out their respective causes and the trial Court is directed to hear and decide the same on merits and in accordance with law.

6. The learned Counsel for the petitioner-husband contended, however, that the learned District Judge has not considered the evidence in the matrimonial proceedings and has heard and decided the appeal on the basis of the wife's grievance relating to rejection of her application (Exhibit 18) and refusal of opportunity to her participating in the matrimonial proceedings. That the learned District Judge has not considered the evidence in the matrimonial proceedings while hearing the appeal in question is a fact. But there was no bar against the learned District Judge, while hearing the said appeal, taking into consideration the nature of the proceedings before the trial Court, the absence of opportunity to the wife to participate therein and the wrongful rejection of her application in that behalf. Consequently, if after taking the facts and circumstances, which resulted in a total deprivation of opportunity to the wife to participate in the matrimonial proceedings, the learned District Judge has thought fit to set aside the decree of divorce obtained in a proceeding conducted in a manner indicated above without opportunity to the wife, I see no good reason to interfere with the already indicated pre-eminently just and fairs order of the learned District Judge.

7. In the result, this appeal fails and the same is dismissed. In the circumstances of the case, however, there will be no order as to costs.

8. The direction of the learned District Judge to the trial Court to hear and decided the main petition as expeditiously as possible and within six months of the receipt of the record also stands.


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