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2013 DIGILAW 376 (BOM)

Gover Neville Cardmaster v. Neville Cardmaster

2013-02-14

A.R.JOSHI, NARESH H.PATIL

body2013
NARESH H. PATIL, J. This appeal is directed against the judgment and order dated 14.3.2005 passed by the Judge, 7th Family Court, Bandra, Mumbai in Petition No.A-961 of 2002 2. The respondent had filed petition under Section 18 of the Foreign Marriage Act, 1969 read with Section 27 (1)(b) of the Special Marriage Act, 1954 for a decree of divorce on the ground of desertion. 3. According to the respondent - original petitioner they got married on 11.11.1988 under the provisions of Section 18 of the Foreign Marriage Act, 1969. They cohabited and resided together at Marine Mansion, Marine Street, Mumbai. The respondent contends that on 12.3.1988 he went to Tasmania via Melbourne to study at the Australian Marine Time College. During that period the appellant herein met the respondent. The appellant was already married to one Minoo Rusi Kateli. The appellant and respondent became friendly. The appellant confided with the respondent that she was not happy with her husband and they were on the verge of taking a divorce. It is further contended that the appellant informed the respondent that she was keen to have a family and children from the respondent. It is further contended that the appellant obtained divorce on 20.10.1988 at Melbourne, Australia from her first husband. Thereafter the appellant and respondent got married on 11.11.1988. After marriage the appellant informed the respondent that she had already undergone hysterectomy operation and therefore it could not be possible for her to have children. The respondent felt cheated. They had decided to adopt a baby and ultimately to settle down in India. The respondent admitted in the petition that the age difference between the parties is of 12 years. The appellant is 12 years older than the respondent herein. On 24.12.1990 the appellant and the respondent decided to come back to Mumbai with a view to settle down permanently. It is contended that the appellant is guilty of deserting the respondent since May 1991 for a period of more than two years. 4. The Family Court issued summons to the respondent which according to the respondent were served on the appellant through Consulate of India at Victoria, Australia. 5. The counsel for the appellant contends that the summons were never served on the appellant. Packet containing the summons and the copy of the petition was given to the tenant residing in the appellant's flat. 5. The counsel for the appellant contends that the summons were never served on the appellant. Packet containing the summons and the copy of the petition was given to the tenant residing in the appellant's flat. This packet was returned to the Consulate of India at Victoria Australia. On instructions of the appellant, Advocate Ms. Rekha Safari attended the matter on 8.8.2003 in the Family Court. On 14.11.2003 the appellant filed her say and made certain application on her behalf. On 21.10.2004 the appellant reached India to attend matter. The appellant attended the court on 16.11.2004 and was directed to attend counsellor. Appellant gave an undertaking that she will not leave India without permission of the court. The appellant sought permission of the court to leave India as her ticket was to expire. The said application was rejected on 5.1.2005. Writ petition came to be filed against the orders passed by the Family Court bearing Writ Petition No. 40 of 2005 on 11.1.2005. The said writ petition came to be rejected by the High Court on 14.1.2005. The appellant further requested the counsel to file her appearance and she left India for Australia on 16.1.2005. On 9.2.2005 according to the appellant vakalatnama though taken on record was refused to be accepted by the Family Court Bandra. 6. On 14.3.2005 it is contended that the appellant personally presented three applications but on that day she was shocked to know according to her that order of divorce was pronounced. Her application to stay the order was rejected by the Family Court. 7. Counsel for the appellant relied on the judgments of the Apex Court in the case of (I) Parimal vs. Veena [AIR 2011 Supreme Court 1150] : [2011(2) ALL MR 462 (S.C.)] and (II) Rafiq & Anr. vs. Munshilal & Anr. [(1981)2 Supreme Court Cases 788]. 8. We have considered the submissions advanced by the learned counsel for the respective parties, perused the judgments relied upon by the appellant and perused the record placed before us. From the record it emerges that the appellant did not participate in the proceedings of the petition filed by the respondent. The appellant could have been more diligent in participating in the proceedings pending before the Family Court. Inspite of undertaking given to the Court it seems she had left India for Australia on the pretext that her air ticket was to expire. 9. The appellant could have been more diligent in participating in the proceedings pending before the Family Court. Inspite of undertaking given to the Court it seems she had left India for Australia on the pretext that her air ticket was to expire. 9. The learned counsel for the appellant submits that substantial issues could not be raised and presented before the court by the appellant for want of participation in the proceedings which has caused prejudice to the appellant. 10. The learned counsel for the respondent vehemently submitted that the appellant has deliberately created hurdles in the final disposal of the matter and left certain lacunas to disturb the respondent and frustrate the proceedings initiated by the respondent in the Family Court. The counsel submitted that the appellant has acted fraudulently and intentionally knowing fully well the outcome of the proceedings initiated by the respondent. The appellant therefore shall not be allowed to take advantage and benefit of her own negligence. 11. In the facts of the case, we are of the view that an opportunity is required to be provided to the appellant to participate in the proceedings. Though the appellant had taken a stand that summons were not served on her personally but that grievance is not sustainable as the appellant had engaged a counsel and she had personally appeared before the Family Court. Thereafter the appellant ought to have taken steps to participate in the proceedings. There is substance in the submissions of the respondent but at the same time it will have to be seen that the consequence of a decree of divorce are far reaching affecting the marital status of the parties. Adequate opportunity of hearing is required to be provided to parties. At the same time care has to be taken that no party deliberately delays hearing of the proceedings or intentionally avoids participation in the proceedings before the Family Court. 12. We are therefore of the view that though the appeal is pending since the year 2005 and substantial valuable time is lost, the same could be remedied by directing the Family Court to dispose of the petition after hearing the parties on its own merits, in accordance with law, within a stipulated time limit. ORDER [a] The judgment and order passed in Petition No.A961 of 2002 dated 14.3.2005 is set aside. The matter is remanded back to the Family Court. ORDER [a] The judgment and order passed in Petition No.A961 of 2002 dated 14.3.2005 is set aside. The matter is remanded back to the Family Court. [b] We direct the Family Court to dispose of the petition finally on its own merits within six months from today. The parties shall appear before the Family Court on 5.3.2013 at 10:30 a.m. [c) The appellant undertakes to cooperate with the Family Court in final disposal of the petition. The Family Court shall provide opportunity to the appellant to file written statement and the relevant documents in accordance with law and lead evidence. [d] The respondent-husband herein is entitled to file relevant documents and lead evidence in accordance with law in addition to the documents which were already placed on record of the Family Court, if any. [e] The appellant shall pay Rs.5000/- to the respondent by way of costs. The costs shall be deposited by the appellant in the Family Court by 5.3.2013. The respondent would be entitled to withdraw the said amount of costs. [f] In case the appellant remains absent on two consecutive dates or fails to cooperate with the Family Court, then the Family Court would be entitled to decide the matter finally in accordance with law. [g] Family Court Appeal is allowed in the above terms. [h] Decree be drawn accordingly. Ordered accordingly.