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Granting Decree Of Divorce In Absence Of Evidence From One Party

Vanshita Singh ,
  24 September 2022       Share Bookmark

Court :
High Court of Bombay
Brief :

Citation :
FAMILY COURT APPEAL No. 04 OF 2022

CASE TITLE:
Chanda Vs. Prakashsingh Rathod

DATE OF ORDER:
19 September 2022

JUDGES:
Justice Urmila Joshi Phalke

PARTIES:
Petitioner: Chanda
Respondent: Prakashsingh Rathod

SUBJECT

The family court granted the divorce without ruling on the wife’s interim plea for maintenance pendente lite, therefore the Bombay High Court’s Nagpur division ordered the matter back to the family court. In the current appeal, the appellant has contested the verdict and divorce decree issued by the Family Court, Akola, on October 22, 2021. The court ruled that the trial court must additionally receive instructions in order to decide the appellant’s interim request for support pendente lite in accordance with the provisions of the Hindu Marriage Act.

IMPORTANT PROVISIONS

Hindu Marriage Act 1955

  • Section 24 - Maintenance pendente lite and expenses of proceedings. - Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.
  • Section 13 - (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

BRIEF FACTS

  • The appellant Chanda and the respondent Prakashsingh Rathod were husband and wife. From the aforementioned union, one boy and one daughter were born. Due to a marriage disagreement that developed when the appellant and respondent were living together, the appellant left the matrimonial home and moved in with her mother in Nanded.
  • Respondent-husband filed a petition for divorce in the Family claiming that throughout the marriage, the appellant-behavior wife’s had not been good and suitable. Even though he made an effort to get her back so they could start living together again, his wife disregarded him and refused to join the group. He claimed that because the appellant-wife had left his business, he had filed a Hindu Marriage Petition for compensation. Because the appellant-wife did not resume cohabitation following the filing of the aforementioned petition, he filed a petition for divorce under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955.
  • The appellant-wife submitted a request for maintenance for her two kids in Nanded’s Family Court. The respondent-husband was ordered to pay the children maintenance at a rate of Rs. 3,000 each per month, while the appellant- wife’s request for maintenance was denied.
  • The respondent-wife refuted each and every accusation made against her by the responding husband. She claimed that the husband and his family had treated her cruelly, forcing her to leave the marital home and seek refuge at her parents’ home.
  • She started the proceedings under Section 125(1) for grant of support as well as under Section 498-A because the respondent-husband had not made any provisions for her maintenance or the upkeep of the children. She also submitted an application for maintenance under Section 24 of the Hindu Marriage Act along with the aforementioned written statement.
  • The appellant-wife filed the current appeal on the grounds she was aggrieved and unhappy with the order made by the Family Court. She requested the payment of costs and maintenance at the amount of Rs. 15,000/- per month, however the main petition was dismissed by the learned trial court. She added that she had been denied the chance to introduce evidence.
  • Her interim application was to be ruled on in the petition, but the learned trial court hastily resolved the main application and awarded divorce, which is against the law and should be overturned.

ISSUES RAISED

  • Whether the Family Court is justified in granting decree of divorce in absence of evidence of respondent-wife?

ARGUMENTS ADVANCED BY THE APPELLANT

  • The learned Counsel for the appellant submitted that the Hindu Marriage Petition was dismissed without providing the appellant a chance and without taking into account her request for maintenance pendente lite and court costs. The appellant lives in Nanded and was required to attend the case in Akola, thus the learned trial court should have taken that into account. Her application for maintenance pendente lite and the litigation costs were to be considered because she must support two children.
  • She further argued that the case petition was dismissed without providing the appellant a fair chance to present her case and without making a decision on the aforementioned application. The learned trial court’s rulings are unconstitutional and should be overturned as a result.

ARGUMENTS ADVANCED BY THE RESPONDENT

  • The learned Counsel for the respondent submitted that the evidence shows that the appellant herself withdrew from the respondent-company husband’s without good cause or reasonable justification. Despite the respondent’s several attempts, she had not started dating again. She betrayed the respondent by choosing not to work for the company.
  • In addition, the respondent filed a Hindu Marriage Petition seeking compensation. Even after the aforementioned petition was filed, the appellant did not join the respondent's company. He then filed a divorce petition. The appellant received the proper notice; she then showed up and submitted a written statement. The hearing for the Hindu Marriage Petition was scheduled; therefore the respondent presented his testimony through an affidavit during the main examination.

JUDGEMENT ANALYSIS

  • It is clear that the petition was decided by awarding the divorce decree without deciding the interim application. The court’s justification for granting the petition was that the appellant-wife had the chance to leave, so the matter was pursued and concluded as a result.
  • In this instance, the petition was dismissed by granting the husband’s divorce without addressing the interim application. The roznama shows that not only the appellant-wife was absent during the hearings, which allowed the court to continue with the case; the roznama also shows that both parties were frequently absent, and on a few times even the respondent-husband was not there.
  • The Family Court dismissed the divorce petition without ruling on the maintenance pendente lite claim. The appellant was also denied the chance to present her own defence. In the aforementioned situations, the appellant should be given the adequate opportunity to argue the reasons for divorce by introducing the facts. Therefore, there is a suitable situation for remanding the matter back to the Family Court for a new decision, with the opportunity for both sides to present their evidence.
  • By ordering the Family Court to adjudicate the case for maintenance that is currently before it, the appellant’s civil application for grant of interim maintenance will be resolved. The appeal should be granted as a result. The argument as stated is addressed in line with that.

CONCLUSION

The appeal was allowed and the decree was set aside. The Hindu Marriage Petition was remanded back to the Family Court, Akola to decide afresh by affording an opportunity to both the sides to lead evidence. The Trial Court was directed to decide the application pending for grant of maintenance pendente lite which is pending. The parties were directed to remain present before the Family Court, Akola on 1st October, 2022. The proceeding before the Family Court, Akola was expedited. Also, Record and Proceedings was sent back to the Family Court, Akola and Civil Application was disposed of.

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Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

 
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