Bombay High Court
Smt. I. vs Shri B. on 1 March, 1994
Equivalent citations: 1994(3)BOMCR521, 1995 A I H C 3486, (1994) 3 BOM CR 521
JUDGMENT D.R. Dhanuka, J.
1. This is an unfortunate litigation involving marital status of two educated women i.e. Smt. Indu Bharat Arora (known as Indu Kapoor prior to her marriage) and Smt. Reeta B. Arora (known as Reeta Dhawan prior to her marriage) both of whom were married to one Bharat Yashodanandan Arora at one time or another. An ex-parte decree of divorce was passed by the Court purporting to dissolve the marriage of Bharat Yashodanandan Arora. Soon thereafter Bharat married one Reeta. The ex-parte decree for divorce was set aside. The marriage of Bharat with Reeta is alleged to be in contravention of section 15 of Hindu Marriage Act, 1955.
2. After setting aside of ex-parte decree of divorce, Bharat and Indu have reconciled and are residing together as husband and wife and are not interested in divorce. Reeta is interested in upholding of ex-parte decree of divorce purporting to dissolve marriage of Bharat with Indu though Bharat is no more interested in pursuing of litigation pertaining to dissolution of his marriage with Indu initiated earlier.
3. For sake of brevity, Bharat Yashodanandan Arora is hereinafter referred to as 'Bharat', Indu Bharat Arora is referred as 'Indu' and Reeta Bharat Arora (formerly known by surname 'Dhawan') is referred to as 'Reeta'. All the three proceedings are being decided by this common judgment for sake of convenience although each proceeding is being examined separately and independently.
4. The relevant facts are required to be set in detail.
5. On or about 26th January, 1981, Bharat Arora married one Indu Kapoor as she was then known. Indu and her parents hail from Indore. Bharat and Indu resided together and cohabited as husband and wife at Bombay. On or about 17th August, 1981 Indu left for Indore. On 25th February, 1982, a son was born from the said wed-lock known as "Sunny". Unfortunately, disputes started between Bharat and Indu atleast from the year 1984 or nearabout. Sometime in the year 1984, Bharat filed Matrimonial Petition No. 56 of 1984 against Indu seeking a decree of divorce on the ground of alleged desertion and alleged cruelty. In the petition, the petitioner Bharat made several allegations against Indu. Indu filed her written statement in the said suit seriously controverting each of the allegations made in the petition. The hearing of the petition was adjourned form time to time. During all these years, by and large Indu used to reside with her parents at Indore. There was temporary reconciliation between Bharat and Indu and both of them resided together at their matrimonial home at Bombay sometime in the year 1986 or near about for some time i.e. during the pendency of the above referred petition. Sometime in the year, 1988, Bharat developed illegitimate relationship with one Reeta Dhawan as she was then known. On 28th May, 1989 a daughter by name Shekha was born to Reeta from such relationship. The relationship continued. Reeta knew that Bharat was a married person. The stalemate in respect of the marriage of Bharat with Indu continued. On 12th September, 1989, the Bombay City Civil Court at Bombay passed an ex parte decree of divorce in M.J. Petition No. 56 of 1984 after recording the evidence of Bharat in brief. At the hearing of the petition on 12th September, 1989, before the City Civil Court neither Indu was present nor her advocate. The learned trial Judge made the petition absolute in terms of prayer (a) of the petition without recording any findings in respect of alleged matrimonial offence of desertion or curelty and recorded undertaking of the petitioner Bharat to the effect that the petitioner shall not re-marry for a period of 30 days from the date of the said decree. The said undertaking was restricted to period of thirty days under misappreciation of Law. Section 15 of Hindu Marriage Act obligates parties not to marry till the Appeal period is over which would include period spent on obtaining of certified copy of decree. During the pendency of the Matrimonial Petition No. 56 of 1984, Indu had taken out a Notice of Motion for maintenance. Since Indu was not present at the hearing of the petition held on 12th September, 1989, the notice of motion for maintenance taken out by Indu was rejected by the City Civil Court.
6. On 27th September, 1989, Shri Purohit Advocate appearing for Indu in the above referred matrimonial petition made an application to the Bombay City Civil Court at Bombay for issue of certified copy of the ex-parte decree passed by the Court on 12th September, 1989. The Court is informed by counsel for the parties appearing before this Court that such certified copy was received by the Advocate for Indu only on 12th December, 1989.
7. By October 1989, Family Courts were constituted for Greater Bombay. The jurisdiction of the Bombay City Civil Court to entertain and decide matrimonial petitions under the Hindu Marriage Act, 1955 and several other similar Acts was transferred to the Family Court.
8. On 18th November, 1989, Indu made an application to the Family Court for setting aside of the above referred ex-parte decree of divorce dated 12th September, 1989 (numbered as Misc. Application No. 2 of 1990). Indu also made an application to the Family Court for condonation of delay in making of the said application on various grounds contending that Indu had sufficient cause for remaining absent at the hearing of the petition on 12th September, 1989.
9. On 15th December, 1989, Indu filed First Appeal No. 336 of 1990 in this Court against ex-parte decree of divorce dated 12th September, 1989. This appeal was and is in time as the period taken by the appellant for obtaining certified copy of the decree is liable to be excluded for computation of the period of limitation for purpose of filing of an appeal. The appeal is liable to be examined on merits and in accordance with law.
10. On 5th November, 1989, Bharat married Reeta. The said marriage was performed according to vedic rites. The said marriage was thereafter registered on 5th February 1990. In the form filled up by Bharat and Reeta concerning registration of this marriage (being marriage in dispute), both Bharat and Reeta have described themselves as 'divorcees'. It means that Reeta had married someone else before having illegitimate relationship with Bharat in or about the year 1988 and the said illegitimate relationship was pruportedly validated by the marriage which took place on 5th November, 1989. The said marriage was performed with undue haste and before the period of appeal against ex-parte decree dated 12th September, 1989 had expired and was thus in breach of section 15 of Hindu Marriage Act, 1955.
11. Bharat opposed the application of Indu for setting aside the ex-parte decree of divorce filed before the Family Court by filing his affidavit in reply dated 24th October, 1990. By an order dated 7th August, 1991, the Family Court set aside the said ex-parte decree dated 12th September, 1989. The Family Court condoned delay in filing of the above referred application for setting aside the ex-parte decree in exercise of discretion vested in it under section 5 of the Limitation Act 1963. The Family Court also exercised its inherent jurisdiction under section 151 of the Code of Civil Procedure. The Family Court analysed the relevant material on record. It was the case of Indu that her mother had expired at Indore on 30th June, 1989 and the entire family was psychologically upset. It was also the case of Indu in the said application that her son was ill and was undergoing treatment at the material time. Indu also produced a medical certificate issued by the medical practitioner in support of her explanation for condonation of delay. It was also contended on behalf of Indu that there was communal riots at Indore, at the material time. The Family Court relied on the judgment of the Supreme Court in the case of Collector, Land Acquisition v. Katiji, reported in A.I.R. 1987 S.C. 1535, exhorting the courts to take a liberal view of applications seeking condonation of delay and have a justice oriented approach. It must be stated here and now that Bharat did not disclose the fact of his subsequent marriage with Reeta (i.e. the marriage which had taken place on 5th November, 1989) to the Family Court. Perhaps Indu was not aware of the said subsequent marriage. To my mind, the legal rights of Indu are not affected by the so called subsequent marriage of Bharat with Reeta particularly when the said purported marriage was performed with undue haste and before even expiry of period of limitation prescribed for appeal. An appeal could be filed even against an ex-parte decree of divorce. The party aggrieved by ex-parte decree of divorce has concurrent remedy of filing an appeal as well as an application for setting aside ex-parte decree under Order 9, Rule 13 of the Code.
12. Being aggrieved by the above referred order dated 7th August, 1991 passed by the Family Court at Bandra in Misc. Application No. 2 of 1990 for setting aside the ex-parte decree of divorce referred to hereinabove, Bharat has filed a writ petition being Writ Petition No. 5884 of 1991 in this Court, invoking Article 227 of the Constitution of India. On 7th April, 1992, A.V. Savant J., admitted this writ petition and directed that the writ petition shall be heard along with First Appeal No. 336 of 1990.
13. On or about 4th June, 1992, Reeta filed Petition No. B/52 of 1992 in the Family Court at Bandra for a declaration that her marriage with Bharat performed on 5th November, 1989 was valid and subsisting and she was legally wedded wife of Bharat. By prayer (b) of the said petition Reeta sought an injunction restraining Bharat, his family members, agents and servants from obstructing the peaceful ingress or egress of Reeta from the matrimonial home i.e. Flat No. 91-A, Grant Paradi Apartment, August Kranti Marg, Bombay - 400 036 (meaning thereby 'the demarcated portion of the Flat' already in her use since quite some time). By the said petition, Reeta sought an order of the Court for payment of a sum of Rs. 8000/- per month as maintenance for herself and a further sum of Rs. 4000/- per month for maintenance of child Shekha. Bharat appears to be a well to do businessman having good financial resources. Several interlocutary orders were passed by the Family Court on several interim applications made by Reeta in the said petition. The impugned interim order is order dated 29th April, 1993 passed by the Family Court in Petition No. B-52 of 1992 to which reference would be made hereinafter. The said petition is pending.
14. Sometime in the month of August 1992, Indu filed her own petition in the Family Court for a declaration that the purported marriage between Bharat and Reeta solemned on 5th November, 1989 was void, bad in law and a nullity. The said petition is also pending.
15. The Court is informed by learned Counsel for Bharat as well as Indu in presence of parties in open Court that since August 1992 Bharat and Indu have totally reconciled and are residing together as husband and wife happily. The Court is informed by both the learned Counsel that Bharat and Indu are keen to put an end to the pending litigation between them as early as possible. As a matter of fact, an application was made by learned Advocate of Bharat to this Court by filing a precipie for withdrawal of Writ Petition No. 5884 of 1991. By an order dated 22nd September, 1993, Tipnis, J., declined to allow Bharat to withdraw the said petition. The learned Judge directed that the matter must be disposed of on merits and in accordance with law. Reeta has been permitted to intervene in Writ Petition No. 5884 of 1991.
16. Even though ex-parte decree for divorce dated 12th September, 1989 is already set aside by the Family Court by its order dated 7th August, 1991, the First Appeal No. 336 of 1990 shall have to be decided on its own merits and independently of the order passed by the Family Court in Misc. Application No. 2 of 1990, being order dated 7th August, 1991. First Appeal No. 336 of 1990 does not involve any question of consideration of delay. Writ Petition No. 5884 of 1991 does involve such a question. It is well settled that a party aggrieved by an ex-parte decree has two concurrent remedies in law. A party aggrieved by an ex-parte decree can file an appeal before the Appellate forum. A party aggrieved by such decree may also make an application for setting aside the ex-parte decree to the Court which passed the decree or to the transferee Court in case the jurisdiction of the Court which passed the decree originally is transferred to some other Court. The fact that the party to the original marriage has re-married is not decisive for determination of the proceedings adopted by the spouse against whom ex-parte decree of divorce was passed. The approach of the Court in two proceedings referred to hereinabove in order to get rid of ex-partedecree differs although the object is the same. In an application for setting aside the ex-parte decree, the Court has to address itself to the question as to whether there was sufficient cause for absence of the party against whom the decree is passed and as to whether an applicant is entitled to re-hearing of the main proceeding. In an appeal arising from ex-parte decree, the Appellate Court is required to determine as to whether the trial Court had adequate legal evidence before it on the basis of which an ex-parte decree could have been passed, etc.
17. Having regard to the involvement of stakes concerning marital status of the parties, I propose to decide each of the proceedings on its own merits. All the above referred proceedings are being decided by a common order merely for sake of convenience.
18. Let us first turn to the merits of First Appeal No. 336 of 1990. I have gone through the roznama of the proceedings before the Bombay City Civil Court in Matrimonial Petition No. 56 of 1984. I have also gone through the pleadings in the said M. J. Petition No. 56 of 1984. In the petition itself, Bharat had inter alia made an application to the effect that the petitioner was not the father of the child of the respondent. If the said allegation was untrue as it appears to be, it was irresponsible. In the said petition, Bharat has made several allegations against the respondent in support of his plea that the respondent was guilty of cruelty as well as intentional abandonment of matrimonial home by Indu without just or reasonable cause. It is clear from reading of the written statement that the respondent has seriously controverted each of the allegations made in the petition. The Court had adjourned the matter on some occasions for framing issues. No issues were ever framed by the Court at any time i.e. not even on 12th September, 1989. To my mind non-framing of the issues by the trial Court is of no significance as in matters where ex-parte decree is passed it has not been the practice of the City Civil Court to frame issues. I, therefore, do not attach much importance to this lacuna in the proceedings before the trial Court. Requirement of Order 20, Rule 4(2) of the Code to record findings and reasons is mandatory. In a solemn proceeding under the Hindu Marriage Act, the Court cannot pass a decree for divorce without recording positive findings and reasons based on analysis of evidence led before it even if the decree is ex-parte.
19. The learned Counsel for all the parties have invited attention of the Court to the deposition of Bharat recorded by the learned Judge of City Civil Court on basis of which ex-parte decree for divorce was passed. To my mind, the evidence of Bharat before the trial Court was totally inadequate and lacks particulars and details altogether. It cannot be forgotten that the proceedings before the matrimonial Court are solemn proceedings and the judgments and decrees whether ex-parte or contested passed in such proceedings operate as judgment or decree in rem. If an unhealthy practice has grown up in the trial Courts to grant ex-parte decree for divorce without scrutinizing evidence and without full application of mind to facts and law merely because the proceeding is ex-parte, earlier such practice stops, it is better for one and all. Such a practice, if any, has no sanction of law. In a given case the courts may pass a decree of divorce without even oral testimony of a party i.e. on basis of affidavits. It all depends upon facts of each case. It is significant that in para. 2 of his testimony Bharat merely stated as under :
"As more particularly set out in the petition, the respondent has practised cruelty upon me."
No particulars of alleged cruelty were deposed. In para. 3 of his testimony Bharat stated that in August, 1981 the respondent has left the matrimonial home without his consent or permission and had been staying with her parents at Indore. Bharat further stated in his evidence that the respondent had deserted Bharat for a period of more than two years preceding the filing of the petition. The law of desertion is well formulated in Halsbury's Laws of England Vol. 13, para. 576 at page 284 (4th Edn.). The statement of law formulated in above referred standard work of Halsbury reads as under :
"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent and without reasonable cause. ................... Mere abandonment of matrimonial home does not per se amount to desertion."
Para. 607 of the said standard work is also of considerable significance. The statement of law formulated in para 607 of Halsbury's Laws of England reads as under :
"Desertion must be without cause if it is to constitute one of the facts on which a petition for divorce may be founded. It follows that separation with cause does not constitute desertion."
The burden of proof to prove matrimonial offence of desertion or cruelty was on Bharat. It was for Bharat to prove by leading evidence that Indu had deserted Bharat without cause and the abandonment was intentional. Bharat ought to have given his own explanation in examination-in-chief in respect of the allegations made against him in the written statement though briefly. The learned Counsel for the parties have invited the attention of the Court to the judgment of the learned Judge of the Bombay City Civil Court delivered on 12th September, 1989. I have read and re-read that judgment. No positive findings are recorded by the learned Judge on the charge of desertion or of cruelty. With respect, the impugned judgment is unsatisfactory. In my opinion, it is the duty of the trial Court to apply its mind to the allegations made in the petition as well as the contentions appearing in the written statement and record positive findings while passing even an ex-parte judgment or decree. The learned trial Judge can accept the uncontroverted testimony of the petitioner without going into too much details provided it is cogent and convincing. Merely because the matrimonial petition proceeds ex-parte , it is not open to the Court to accept the ipsi dixit of the witness and pass decree for divoce in a very casual manner. Mr. Grover, the learned Counsel for Reeta has submitted that Indu had remained absent at several hearings of the matrimonial petition and the fact remains that Bharat had clearly stated in his testimony that Indu had deserted him. The mere use of the expression "desertion" in the testimony by itself means nothing. The expression "desertion" is used by the Legislature in the sense in which the said word is understood in matrimonial law. The parties have to depose to relevant facts and satisfy the judicial conscience of the Court `that' in fact matrimonial offence was committed by the offending spouse and seek decree for divorce on the basis of the reliable and cogent evidence. I am not satisfied with First Appellate Court that evidence of Bharat was adequate to sustain decree of divorce.
20. Having regard to the above discussion, I have reached the conclusion that the deposition of Bharat led before the Bombay City Civil Court was totally inadequate for granting the ex-parte decree of divorce. Order 20, Rule 4 sub-clause (2) of the Code of Civil Procedure provides that the judgments of courts other than the Court of Small Causes shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. The said provision is applicable even to ex-parte decree. The impugned order under appeal is not in conformity with mandate of law contained in Order 20, Rule 4(2) of the Code of Civil Procedure. It may be stated in the passing though not absolutely necessary for disposal of this case as a matter of academic interest that the chartered High Courts are not bound by the provisions contained in Order 20, Rule 4(2) of the Code of Civil Procedure while exercising its ordinary or extra ordinary civil jurisdiction in view of the statutory exemption granted to this Court by virtue of the provisions contained in Order 49, Rule 3(5) of the Code of Civil Procedure.
21. Before I pronounce my judgment in First Appeal No. 336 of 1990, I record an oral application made by the learned Counsel for Bharat Y. Arora seeking leave of the Court to withdraw M.J. Petition No. 64 of 1984. Mr. Sancheti, learned Counsel for Indu supports the application. Mr. Grover appearing for Reeta opposes the application on behalf of Reeta even though Reeta is not impleaded in this proceedings. The learned Counsel Mr. Grover submits that Reeta would be prejudiced if M. J. Petition No. 64 of 1984 is allowed to be withdrawn or the First Appeal No. 336 of 1990 is allowed. The learned Counsel for all the parties wants me to record that Bharat, Indu and Reeta all are present before the Court and the statements are being made in the open Court after taking necessary instructions from their respective clients.
22. There is another way of looking at the problem. Parties to marriage i.e. Bharat and Indu do not want to divorce each or dissolve the marriage. Reeta wants that the marriage between Bharat and Indu be dissolved so that Reeta gets clear status of a wife. Bharat is bent upon not joining Reeta but continuing his marriage with Indu.
23. I shall now pass final orders in First Appeal No. 336 of 1990. The said final orders are as under :
(1) Appeal allowed. Ex-parte decree dated 12th September, 1989 setting aside and M.J. Petition No. 56 of 1984 dismissed as withdrawn. Objection of Reeta for not permitting Bharat from withdrawing M.J. Petition No. 56 of 1984 is rejected.
24. Bharat was under an obligation not to re-marry at least till the period of appeal against the ex-parte decree passed on 12th September, 1989. The time taken for obtaining certified copy of the decree is always required to be excluded for computation of period of limitation for the purpose of filing of an appeal. Thus, on any view of the matter Bharat was under a statutory obligation not to re-marry until the period of appeal prescribed by the Bombay City Civil Court read with section 12 of the Limitation Act, 1963 expired. It was not appropriate for the trial Court to ask Bharat to give an undertaking to the effect that Bharat would not re-marry for a period of 30 days from passing of the said decree. The learned trial Judge committed an error of law in obtaining restricted undertaking as aforesaid. Merely because such a restricted undertaking was given by Bharat, Bharat did not become entitled to re-marry, immediately on expiry of 30 days from the date of passing of the said decree. Thus, the marriage performed on 5th November, 1989 was clearly in breach of the provisions contained in section 15 of the Hindu Marriage Act, 1955.
25. The learned Counsel for Reeta has invited attention of the Court to several judgments of the Supreme Court and this Court and has submitted that this Court in any event record a positive finding to the effect that Reeta has status of a wife even if the marriage of Reeta with Bharat is held to be in contravention of section 15 of the Hindu Marriage Act, 1955 by reason of the same having been performed before the expiry of the period of limitation for filing of an appeal against ex-parte decree dated 12th September, 1989. All the learned Counsel for the parties have assisted the Court by pleading the relevant case law before the Court. In Arun Kautik Pawar v. Laxmi Arun Pawar, reported in 87 Bom. L.R. 670, the Honourable Mr. Justice P. B. Sawant as his Lordship then was speaking for the Division Bench of this Court observed that a party aggrieved had remedy of an appeal as well as remedy of making an application for setting aside ex-parte decree. In this case, the Hon'ble Division Bench observed that if an application for setting aside an ex-parte decree was made beyond time, the application would be maintainable if delay was condoned under section 5 of the Limitation Act, 1963 notwithstanding that the application was filed beyond 30 days of the ex-parte decree or the other spouse had re-married. Mr. Grover, the learned Counsel for Reeta has heavily relied upon the ratio of the judgment of the Supreme Court in the case of Smt. Lila Gupta v. Laxmi Narain & others, . At the relevant time i.e. when the case of Smt. Lila Gupta was being heard by the Court, proviso to section 15 of Hindu Marriage Act, 1955 was very much in force. In that case, a decree of divorce was passed dissolving the marriage of Rajendra Kumar with one Sarla on 8th April, 1963. Soon thereafter (i.e. before the expiry of period of one year as prescribed by the proviso to section 15 of the Act), Rajendra Kumar had married one Smt. Leela Gupta. The said marriage was in contravention of section 15 of the Hindu Marriage Act, 1955 as the period of one year from the date of passing of the decree for divorce had not expired. Unfortunately Rajendra Kumar expired on 7th May, 1965. Smt. Leela Gupta claimed the estate of Rajendra Kumar as the widow of Rajendra Kumar. The objectors contended that the marriage of Leela Gupta with Rajendra Kumar was a nullity as the same was in contravention of section 15 of the Hindu Marriage Act, 1955. In this context the Supreme Court held that the marriage in contravention of provisions of section 15 of the Act was not void but was at the most invalid. In para. 12 of the judgment, D.A. Desai, J., speaking on behalf of himself and Chandrachud, C.J., made certian pertinent observations. In para. 15 and 21 of the said judgment further observations were made by the Apex. Court. In para 21 of the said judgment, the Apex Court observed as under :
"As her marriage, even though in contravention of the provisions of section 15, is not void, she cannot be denied the status of wife and, therefore, the widow of deceased Rajendra Kumar and in that capacity as an heir to him."
According to my strong prima facie opinion, Mr. Grover appears to be entitled to rely on paras. 12, 15 and 21 of the above referred judgment though the said observations were made in context of a claim for inheritance. The learned Counsel Shri Mohite has submitted with some force that this aspect is not totally free from doubt. It cannot be forgotten that in the case before the Supreme Court, the question of two ladies claiming to be wife of a Hindu male at the same time and during life time of each other did not arise. Inspite of my strong prima facie opinion as aforesaid, I am hesitant to make a conclusive declaration in respect of the status of Reeta as the wife of Bharat Arora at this stage and in this proceeding. The Hindu law does not permit a Hindu male to have two wives simultaneously. This question shall have to be finally gone into in Petition No. B/52 filed by Reeta before the Family Court. Suitable provision for residence and maintenance for Reeta and child Shekha shall have to be made. Interim protection shall be granted to Reeta by upholding interim orders for maintenance as well as interim injunction restraining Bharat from ousting Reeta from the place where she is residing at present i.e. the demarcated portion of flat No. 91-A, Grant Paradi, August Kranti Marg, Bombay - 400 036 as indicated hereinafter. The learned Counsel Shri Grover attempted to persuade this Court to decide the controversy regarding claim of Reeta to the status of a wife in this proceeding once for at all. I find that it is not possible to do so having regard to the pendency of the Petition No. B/52 before the Family Court and the subject matter of this petitions is not the subject matter of either of the proceedings before this Court.
26. I shall now proceed to examine the validity of the order passed by the Family Court on 7th August, 1991. The learned Counsel for the petitioner Bharat is not interested in pursuing the petition. The learned Counsel for Indu is also not willing to pursue this petition. Reeta Arora nice Dhawan alone is interested in supporting this petition. Mr. Grover, learned Counsel for Reeta has submitted that the trial Court was misled by Bharat in as much as the fact of marriage of Bharat with Reeta performed on 5th November, 1989 was not disclosed to the Family Court. The learned Counsel Mr. Grover submitted that the statements made by Indu in her application for setting aside the ex-parte decree were not quite truthful. The learned Counsel submitted that the Court should remand Misc. Application No. 2 of 1990 for fresh hearing with a liberty to advocate for Reeta to cross-examine Indu and Bharat on various aspects. I cannot forget that I am exercising jurisdiction under Article 227 of the Constitution of India. There is no relevant material before this Court from where it can be inferred that Indu was factually aware of the marriage of Bharat with Reeta at the time of hearing of her application i.e. Misc. Application No. 2 of 1990 before the Family Court. On this aspect Indu is not at all at fault. Bharat is undoubtedly at fault. Bharat ought to have disclosed his marriage with Reeta to Family Court in his affidavit in reply filed in the said proceeding. Application for condonation of delay was made by Indu inter alia on the ground that Indu came to know for the first time about decree of divorce on 9th November, 1990. I do not believe Indu on this count. As a matter of fact in reply to the query of the Court, the learned Counsel for Indu informed the Court that somewhere in the month of October 1990 she has come to know about the ex-parte decree of divorce from her advocate. Indu has made misstatements in this behalf knowingly or inadvertently. As against that, the conduct of Reeta in having illegitimate relationship with married person Bharat since the year 1988 is more blameworthy. The Court is required to balance justice of the case. Having regard to the ratio of the judgment of the Supreme Court in the case of Collector, Land Acquisition v. Katiji, , application for condonation of delay was required to be approached by the Family Court with a justice oriented approach. Human affairs are not mathematics. Sometime exaggerated statements are made by the deponents even though the same should not be made. Law Courts are not meant to punish people for discrepancies and errors. If on one hand the conduct of Indu in making Mis-statements as aforesaid in the application for setting aside the ex-parte decree is blameworthy, conduct of Reeta in having illegitimate relationship with Bharat, a married person prior to 5th November, 1991 and marrying him in haste is equally blameworthy. There are several judgments of our High Court as well as the Supreme Court which have laid down that those who go through the subsequent marriage in haste i.e. soon after decree of divorce in respect of first marriage take certain amount of risk. I had arranged a meeting in my chamber when the parties and their counsel were present with a view to find out as to whether any settlement was possible between the parties. I did get an impression after talking to the learned Counsel for the parties that Bharat is determined not to reconcile with Reeta and his reconciliation with Indu is complete. If I dismiss application for setting aside the ex-parte decree, the consequences would be to break the matrimonial alliance between Bharat and Indu without reunion between Bharat and Reeta. This aspect of the case has at best some bearing on exercise of judicial discretion. Orders passed by writ courts must promote justice. I have myself set aside the ex-parte decree by allowing First Appeal No. 336 of 1990 on its own merits. I shall now proceed to pronounce my conclusion in respect of Writ Petition No. 5884 of 1991.
27. After taking an over all view of the matter, I have no hesitation in holding that the order of 7th August, 1991 passed by the Family Court was just and reasonable. I uphold the said order on its own merits. In my opinion, it would not be just and reasonable to set aside the said order or to remand Misc. Application No. 2 of 1990 for re-hearing at this stage. No case for interference is made out with the impugned orders. I have tried my best to evaluate various contentions having bearing on exercise of discretion of the Court under Article 227 of the Constitution of India and reached the conclusion that Writ Petition No. 5884 of 1991 must fail. The said writ petition is accordingly dismissed. There shall be no order as to costs.
28. I shall now proceed with Writ Petition No. 2289 of 1993. By this writ petition Bharat has impugned inter-locutary order dated 29th April, 1993 passed in Petition No. B/52 of 1992 and Petition No. B/64 of 1992. I have heard the learned Counsel for all parties at some length. It is not possible to interfere with the interlocutary orders passed by the Family Court on 29th April, 1993. By the said order the Family Court has directed Bharat to pay a sum of Rs. 4000/- per month to Reeta as and by way of interim maintenance. By the said order the Family Court has also directed Bharat to pay a sum of Rs. 1500/- for the maintenance of the daughter Shekha. Bharat appears to be a quite well to do businessman. It is not necessary to go into details. The discretion exercised by the Family Court while passing the impuged interim order appears to have been exercised reasonably and bona fide. The Family Court may re-examine the matter in greater depth at the time when the pending Petition No. B/52 is finally heard and disposed of. The Court is informed by the learned Counsel Shri Grover that all the arrears of maintenance are already paid by Bharat to Reeta. Civil application filed on behalf of Reeta for enforcing the order of interim maintenance does not therefore survive.
29. By the impugned order dated 29th April, 1993, the Family Court has also granted interim injunction restraining Bharat from preventing Reeta and her child from entering the bath room and W.C. for using the same. It appears that flat No. 91-A in the building known as Grant Paradi Apartments, August Kranti Marg, is used by various members of the family of Bharat. Mr. Mohite, learned Counsel for Bharat states that Bharat would make a self-contained flat available to Reeta for her residence at Malad where Reeta and the child can reside peacefully. There are lot of disputes between the parties. It is not possible for this Court to vary the interim order passed by the Family Court in this behalf on 29th April, 1993, at this state. I express no opinion on merits on the controversy between the parties in this behalf. It would be open to both the parties to make their respective contentions and submissions before the Family Court. It shall be for the Family Court to decide whether any case is made out for directing Reeta to occupy some other flat or not. I must observe that Mr. Grover has emphatically opposed any move on the part of Bharat to shift Reeta to some other accommodation. Similarly Mr. Mohite has submitted that the only way to ensure peace is to direct Reeta to accept some other acommodation.
30. In the result, Writ Petition No. 2289 of 1993 also fails. The writ petition is also dismissed. Rule in both the writ petitions is discharged. No order as to costs.
31. Having regard to the facts and circumstances of the case, the Family Court is directed to dispose of pending petitions filed by Reeta as well as Indu as expeditiously as possible preferably within six month from the date of receipt of the writ from this Court.
32. Mr. Grover, the learned Counsel for Reeta makes an application to this Court for stay of the operation of the order passed by this Court allowing First Appeal No. 336 of 1990 and dismissing Writ Petition No. 5884 of 1991. Mr. Mohite and Mr. Sancheti oppose the application. The application for stay of the order passed by this Court does not appear to be either necessary or reasonable. The application for stay is accordingly refused.
33. The parties shall be at liberty to act on basis of the ordinary copy of this judgment duly authenticated by the Shirstedar of this Court.
34. Issue of certified copy expedited.