"XYZ" Vs. MOHAMED ASLAM SHEIKH

JUDGEMENT

(1.) Heard the learned Senior Counsel appearing on behalf of the Appellant. None appears on behalf of the Respondent though he is served. Appellant in this Family Court Appeal is challenging the judgment and decree passed by the learned Principal Judge, Family Court, Mumbai dated 17/11/2004 whereby the Petition filed by the Appellant for declaration that she is not a legally wedded wife of the Respondent and that she had never married the Respondent and the purported marriage be declared as null and void. The Family Court Appeal was admitted on 11/1/2005. After the appeal was admitted, Respondent was served and he engaged an advocate to appear on his behalf. Vakalatnama was filed by the said advocate which was duly signed by the Respondent. His advocate however expired in 2009 and therefore notice was issued to him to enable him to appoint another advocate. Despite best efforts taken by the Appellant to serve the Respondent, he could not be served. An application was made therefore by the Appellant to serve the Respondent by substituted service. Accordingly, permission was granted to the Appellant to serve the Respondent by substituted service. The Bailiff who had gone for the purpose of pasting notice on the outer door of the Respondent's house, made a remark that "Zopadpatti of the Respondent is demolished and new building is constructed. However, Respondent is not found residing there and his whereabouts are also not known. Hence, the Court's notice was affixed on the main entrance of the Building." This Court further passed an order dated 11/10/2012 by way of abundant caution and directed the Appellant to publish a notice in two news-papers; one in English and the other in vernacular, stating therein that the appeal shall be disposed of finally on 29/10/2012 at 3.00 P.M. We had directed that the notice should be given in newspaper by concealing the name of the Appellant. Accordingly, the said notice was published and, thereafter, the matter was heard by us since the Respondent failed to appear before us despite service of notice. Despite service of that notice, Respondent has not appeared before us. The appeal is pending since 2004 and, therefore, we have heard the learned Senior Counsel appearing on behalf of the Appellant.

(2.) Brief facts are as under:-

(3.) Appellant got engaged to Mr. Vishal Dave on 3/8/2003. On 8/12/2003, she got married to Vishal Dave according to Hindu Rites and went to live with him and her in-laws. On 21/1/2004, Respondent surreptitiously dropped a paper between the inner door and outer safety door of the Appellant's parents residence purporting to be a marriage certificate dated 4/1/2001 under the Registration of Marriages Act, 1998 with the name of Appellant's brother-in-law and also a telephone number was mentioned on the reverse side of the said marriage certificate. Since the said contents of the said certificate were false and the certificate was fabricated and since the Respondent made an attempt to contact the Appellant on telephone, she was constrained to file Petition No. B-9 of 2004 in the Family Court at Bandra, seeking declaration and injunction. Interim injunction was passed and the Respondent was restrained from entering the Appellant's residence at her in-laws place or her parent's place and also from making telephone calls accosting or attempting to accost her or her family members. Undertaking was filed by Respondent that he would abide by the restraining order.