ADHYAATMAM BHAAMINI Vs. JAGDISH AMBALAL SHAH

JUDGEMENT

(1.) This appeal by the wife arises out of a petition filed by the respondent in the Family Court at Bandra in Bombay seeking divorce on the ground of cruelty and desertion under Sections 13(1) (ia) and 13 (1) (ib) of the Hindu Marriage Act, 1955. The parties were married on November 15, 1959. They have two children. The divorce petition was filed on February 26, 1990. It appears that during the period from 1990 to 1993 there was not much progress in the said petition. The Bombay High Court, while disposing of the Writ Petition No. 37 of 1993 filed by the appellant, gave the following direction in its order dated February 5, 1993 :-

(2.) The appellant was not being represented by any advocate before the Family Court at that time. The date fixed before the Family Court in the divorce petition was March 9, 1993 but since the Presenting Officer was on leave on that date, the matter was adjourned to April 28, 1993 on which date the case was adjourned to May 5, 1993 as the appellant was absent. On May 5, 1993 the appellant appeared before the Family Court and prayed for time and the matter was adjourned to May 21, 1993. On May 21, 1993 when the case was taken up the appellant was absent and in her absence the statement (examination-in-chief) of the respondent, who was the petitioner in the divorce petition, was recorded. It appears that the appellant reached the Court while the statement of the respondent was being recorded. The matter was adjourned to May 27, 1993 for further examination of the respondent. On May 27, 1993 the respondent was cross-examined by the appellant and the matter was adjourned for further cross-examination to May 31, 1993 on which date it was adjourned on the request of the appellant to June 2, 1993. On June 2, 1993 the appellant cross-examined the respondent but the cross-examination was not complete and the matter was adjourned to June 4, 1993. On June 4, 1993 an application for adjournment signed by the appellant was submitted in the Family Court by Ms. Madhu Shetty, an advocate, who was not representing the appellant in the case. On the said application the Court, on June 4, 1993, passed an order taking note of the fact that the appellant had personally come to the Court and she got the application typed by the typist on the first floor of the Court building and that the application had been presented by one advocate, Ms. Madhu Shetty, who was not an advocate on record and was not representing the appellant in the case. In the said order it is recorded that since the said advocate had stated that she did not personally know the appellant, the typist was called and he gave a copy of the application to the counsel for the respondent. In the said application for adjournment the appellant had sought adjournment on the ground that a friend of her had died. Though the Family Court felt that there was an attempt of the appellant to prolong the matter and to protract the trial, the Court adjourned the matter for further cross-examination of the respondent for June 5, 1993. But in the order it was made clear that if the appellant fails to appear, necessary orders would be passed and further evidence would be recorded. On June 5, 1993 the appellant did not appear in the Court and the Family Court passed an order closing the cross-examination of the respondent. Thereafter, he recorded the Statement of Nirvan Shah, the younger son of both the parties, and also passed orders on the application submitted by the respondent for summoning a witness from the Income-tax Office along with the records. The matter was adjourned to June 9, 1993 on which date it was adjourned to June 14, 1993 in view of the letter that was received from the Income-tax office. On June 14, 1993, the necessary records produced from the Income-tax Office were taken on record and the matter was adjourned to June 18, 1993 on while date the Family Court delivered the judgement allowing the divorce petition filed by the respondent and passed the decree for dissolution of marriage on both the grounds, viz. , cruelty and desertion. The appellant did not appear on any of the dates on which the case was taken up by the Family Court from June 5, 1993 to June 18, 1993.

(3.) The appellant filed an appeal against the said decree of the Family Court before the Bombay High Court which has been dismissed by the High Court by the impugned judgment dated August 17, 1995. The High Court has taken note of the absence of the appellant before the Family Court on June 4 and 5 1993 and the subsequent dates on which the case was taken up by the Family Court till its judgment on June 18, 1993 and found merit in the submission urged on behalf of the respondent that the appellant allowed the proceedings to go ex parte against her by deliberately remaining absent and also with a view to protracting the same. The High Court, taking note of the stand of the appellant in the pleadings and her conduct in the proceedings, has expressed the view that no useful purpose would be served in remanding the proceedings to the Family Court and that way prolong the agonies of the parties. Having regard to the stands adopted by both of the parties, the High Court felt convinced that the position reached is of no return. The High Court has, therefore, upheld the decree for divorce passed by the Family Court. Hence this appeal.