High Court quashes ex-parte divorce order, sends case to family court
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Quashing the lower court judgement which granted divorce ex-parte (in absence of the other side) and restoring the case, justices Naresh Patil and A R Joshi asked both wife and husband to appear before the Family Court on February 25 in the same matter.
The Judges asked the family court to dispose of the petition (filed by the husband seeking divorce) on its own merits. They also asked both the parties to co-operate with the court in final disposal of the petition.
"The appellant (wife) could have been more diligent in prosecuting her remedies and participating in the proceedings before the family court. Certainly, the issue was relating to claim of divorce. Serious consequences flow from the orders passed in the matter of this nature. The relationship between the parties gets affected", the judges observed.
The family court had rejected the application filed bythe wife observing that the matter was posted for judgement and there was no scope to review the order.
"The view expressed by the trial court (family court) is erroneous and in contrast with settled principles of law. The court ought to have looked into prayer made by the appellant (wife) substantially instead of taking technical view of the matter", observed the high court bench.
"In the facts of the case, we find that adequate opportunity is required to be provided to the appellant (wife)to test the matter on merits. We are inclined to remand matterto the family court for expeditious disposal on merits", the judges noted.
The husband had filed an application under section 13(1)(ia) (ib) of the Hindu Marriage Act seeking divorce from his wife. The couple got married on February 14, 1996, and have a son and a daughter.
After marriage both were staying together in Nashik. However, the husband alleged that his wife never cohabited with him properly since beginning and insulted him every now and then. The husband contended that he tolerated her alleged misbehaviour and humiliating treatment for quite some time and when she did not change, he initiated divorce proceedings claiming that his wife was behaving whimsically and eccentrically.
The husband submitted that he had purchased a flat in Nashik from his own income. However, his wife, her parents and brother were staying there and he was denied entry in his own house. He alleged that he was driven out of the house along with his disabled son after he had filed divorce petition in court.
The husband said that on December 2, 2009, he had sent a notice to his wife for resumption of cohabitation but did not get any response. He said his wife was a teacher earningRs 25,000 to Rs 30,000 monthly and only the daughter was dependent on her hence she was able to maintain herself and the child.
On the other hand, he had a meagre salary and his disabled son was dependent on him. On June 8, 2011, the notice for conciliation was sent to the wife and on June 23, 2011 the meeting was fixed for this purpose. As the wife did not turn up, a failure report was filed on July 1, 2011, and on the same day an ex-parte order was passed by the family court.
The wife moved the family court for setting aside the ex-parte order but it was rejected. The court then proceeded to decide the case ex-parte and impugned order was passed on December 7, 2011, granting the divorce decree.