Gujarat High Court
Kaminiben Mangaldas Shah vs Bharatbhai Rasiklal Shah on 10 March, 2005
Equivalent citations: AIR2005GUJ279, AIR 2005 GUJARAT 279, (2005) 3 GCD 2363 (GUJ), (2006) 37 ALLINDCAS 857 (GUJ), 2005 (3) GCD 2363, (2005) 4 CURCC 511
Author: M.C. Patel
Bench: M.C. Patel
JUDGMENT B.J. Shethna, J.
1. Heard learned counsel Mrs. Nisha Parikh for the appellant - wife and Mr. Kinariwala for the opponent husband. Mr. Kinariwala supported the judgment and order passed by the learned Judge and submitted that it does not require any interference by this court in this appeal.
2. The opponent - husband filed Family Suit No. 344 of 2001 before the Family Court at Ahmedabad for obtaining decree of dissolution of marriage with his wife - present appellant on the ground of cruelty and desertion under Section 13 of the Hindu Marriage Act, 1955. The said suit was allowed by Mrs. L.R. Abichandani, learned Judge, Family Court No. 2, Ahmedabad by her impugned judgment and order dated 31st July, 2002 whereby she ordered that the marriage solemnised between the husband and wife is declared to be dissolved from the date of decree on the grounds of cruelty and desertion under Section 13 of the Hindu Marriage Act, 1955 (for short, 'the Act').
3. The appellant - wife married with the respondent - husband on 10th July, 1997 as per Hindu rites and rituals but soon after the marriage, quarrel started and according to the appellant - wife in this appeal, her husband had driven her out from his house on 14th March, 1998 when she was running pregnancy of two months. Thereafter, on 15th October, 1998, she gave birth to a baby girl 'Mansi', while remaining at her parents' house. However, her husband never bothered either about his wife or his daughter and instead of maintaining them, approached the Family Court by way of H.M.P. (Family) Suit No. 344 of 2001 before the Family Court at Ahmedabad under Section 13 of the Act. The said suit was filed on 11th June, 2001. Summons was issued to the wife for remaining present on 3rd July, 2001 which could not be served upon the wife. It was served for the first time on 25th October, 2001. Accordingly, on 26th December, 2001, she did remain present before the court but on that day, the husband was not present and the matter was adjourned as the Presiding Officer of the court was on leave. We find from the certified copy of the Rojkam produced by Mrs. Parikh for the wife that on the next date i.e. on 28th January, 2002, right of the respondent wife before the Family Court to file reply to the divorce petition was closed by the learned Judge of Family Court as on that day, the wife was not present before the court. Thereafter, the matter was adjourned to 25th February, 2002. On that day also, the wife was not present and in her absence, issues were framed by the learned Judge and the matter was kept for evidence on 4th March, 2002. But on 4th March, 2002, no one was present due to disturbed situation in the city on account of riots and the matter was kept on 24th April, 2002. On 24th April, 2002, the wife was not present and the matter was kept on 28th June, 2002. On 28th June, 2002, the matter was kept on 16th July, 2002 in absence of the wife. On 16th July, 2002, in absence of the wife, the learned Judge recorded the evidence of the husband and closed the evidence. On behalf of the applicant husband, affidavit was filed by way of an evidence and the applicant - husband was heard and the matter was kept for judgment on 31st July, 2002. On 31st July, 2002, as stated earlier, the learned Judge of the Family Court allowed the petition of the husband and passed decree of divorce on the grounds of cruelty and desertion against the opponent - wife.
4. We have been taken through the short judgment delivered by the learned Judge by Mrs. Parikh for the appellant - wife more particularly, para 8 of the judgment which we would like to reproduce, which is as under:-
"8. As stated earlier, the respondent did not come forward to contest this petition though the notice was duly served upon her. Under these circumstances, the say of the petitioner husband on oath have remained unchallenged. This court has also no reason to disbelieve the say of the petitioner on oath. The petitioner has specifically stated on oath the cause for which he was ill-treated by the respondent wife. The petitioner has also stated on oath in his affidavit the manner in which he was deserted by respondent since 14-3-1998. It is, therefore, established that the petitioner was treated with cruelty and also deserted by the respondent without any just and reasonable cause. The points No. 1 and 2 are, therefore, answered in the affirmative."
5. In Family Courts, as far as possible, lady judges are sent on deputation only with a view that poor innocent wives are not harassed and they get real justice but the manner in which and the way in which the learned Judge allowed the petition filed by the husband and passed the decree of dissolution in this case left us much to desire. The courts are there to do justice to a deserted woman and not to dispose of the cases in this manner. While allowing the petition, the learned Judge has completely overlooked the fact that as soon as the summons was served upon her on 25th October, 2001, the respondent - wife did remain present on the next date i.e. on 26th December, 2001 before the court. On that day, the applicant - husband was not present and the matter had to be adjourned because the learned Judge herself was not present as she was on leave. If the learned Judge had taken little pain in going through the Rojkam of the case, then she would have never observed which she has observed in para 8 of her judgment that the respondent did not come forward to contest the petition though the notice was duly served upon her.
6. It was the duty of the learned Judge to first make an attempt of reconciliation between the parties. In the instant case, the learned Judge has not applied her mind to the fact that they were young couple, got married only on 10th July, 1997 and after the wife was driven out by the husband within a period of less than a year of their married life i.e. on 14th March, 1998, then she gave birth to a baby girl on 15th October, 1998. It was also the duty of the learned Judge to see that why the wife was not remaining present even though the summons was duly served upon her. But it seems that the learned Judge was more interested in disposal of the cases rather than doing justice to the parties. Therefore, in undue haste, she decided the matter at the earliest i.e. on 31st July, 2002 as if the heaven was going to fall, which was not at all proper for any Judge to dispose of the cases more particularly, such type of cases in this manner. This type of order, sometimes, creates irreversible situation. Therefore, it should be avoided as far as possible.
7. The worst part of it is that the learned Judge has nowhere stated in her judgment what was stated by the husband on oath which amounts to cruelty. It was the duty of the learned Judge to go to the root of the matter and find out the real cause for the dispute between the spouses having married life of hardly one year and make a serious attempt of reconciliation between them. But unfortunately, the learned Judge has miserably failed in discharging her pious duty in this case.
8. Thus, on all counts, the impugned judgment and order passed by the learned Judge is required to be quashed and set aside. Accordingly, this appeal is allowed and the impugned judgment and decree of divorce passed by the learned Judge, Family Court No. 2, Ahmedabad in Family Suit No. 344 of 2001 is hereby quashed and set aside and the matter is remanded to the Family Court. Having regard to the peculiar facts and circumstances of the case, it is desirable that this matter is heard by any Judge other than the Judge who has decided the case, after making all efforts of conciliation and if it is not possible, then only the concerned learned Judge may proceed to decide the case on merits strictly in accordance with law, after extending due opportunity of hearing to the wife. The appeal is accordingly allowed with a special cost of Rs.5,000/(Rupees Five thousand only) which is to be paid by the respondent - husband to the appellant - wife, forthwith. Copy of this order be sent to the Family Court forthwith.
No order on Civil Application No. 1830 of 2005 as the main appeal itself is allowed.