Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 475 (BOM)

Seema Manoj Pardesi v. Manoj Sitaram Pardesi

2013-02-28

A.R.JOSHI, NARESH H.PATIL

body2013
JUDGMENT:- 1. Heard. Admit. Notice of admission waived by the learned counsel for the respondent. Print is dispensed with. Heard finally by consent of the parties. 2. The appeal is directed against the judgment and order dated 31.3.2010 passed by the Principal Judge, Court No. 5, Family Court, Pune in Petition No. A-352 of 2009 as well as the order dated 18.7.2012 passed by the Judge, Court No. 5, Family Court at Pune in Civil M.A. No. 109 of 2011. 3. It is contended that the appellant was married to the respondent on 8.7.2003. After leading married life for some time the disturbance started in their day to day life which landed them in the Family Court. The respondent had filed petition No. A-352 of 2009 in the Family Court on 8.7.2006 for divorce. On 22.9.2009 the appellant filed written statement. On 31.3.2010 the trial court passed decree in favour of the respondent. On 7.7.2010 the appellant filed Civil Misc. Application No. 109 of 2011 under Order IX Rule 13 of the Code of Civil Procedure to set aside exparte decree, which application came to be rejected by the Family court by order dated 18.7.2012. 4. The learned counsel for the appellant submits that the appellant did not get opportunity of leading evidence and for putting up her case before the Family Court which has caused prejudice to the rights of the appellant. The circumstances were beyond the control of the appellant. While the matter was being contested in the Family Court the appellant's minor daughter Aditi was suffering from viral fever. The appellant was residing at far away place at Dhule and had to travel to Pune on regular basis. The appellant has been facing financial stringency and due to several factors, the appellant could not utilise proper opportunity to defend herself. 5. The learned counsel for the respondent has refuted the contentions raised on behalf of the appellant. It was submitted that the appellant inspite of giving sufficient opportunities failed to avail of the same and therefore the Family Court was left with no other alternative than to proceed with the matter and decide the matter finally. 6. We have perused the record placed before us. Considered the submissions advanced. In the facts of the case, we are convinced that the appellant is required to be provided with an opportunity to contest the matter on merits. 6. We have perused the record placed before us. Considered the submissions advanced. In the facts of the case, we are convinced that the appellant is required to be provided with an opportunity to contest the matter on merits. The appellant could not get appropriate opportunity to put up her defence and cross-examine the respondent. In the facts of the case, we are of the view that the matter be remanded back to the Family Court. Denying the appellant appropriate opportunity of hearing had caused prejudice to her. 7. In the result, we pass following order : ORDER I. Family Court Appeal is allowed. II. Judgment and Order dated 31.3.2010 passed by the Principal Judge, Court No. 5, Family Court, Pune in Petition No. A-352 of 2009 as well as the Order dated 18.7.2012 passed by the Judge, Court No. 5, Family Court at Pune in Civil M. A. No. 109 of 2011 are quashed and set aside. Matter is remanded back to the trial court. Trial court to finally dispose of the petition on its own merits within six months from the date of receipt of writ of this order. III. Parties are directed to cooperate with the court in final disposal of the matter. Parties undertake to cooperate with the court below. V. We direct the respondent husband to pay Rs.1,000/- to the appellant wife for traveling and daily allowance per court attendance, which amount would be deposited in the Registry of the Family Court. Appellant would be entitled to withdraw the said amount.