CHINDU KHEMA PATIL Vs. SARALA SOU CHINDU PATIL

JUDGEMENT

(1.) This appeal is directed against the other order dated June 28, 1982 passed by the learned District Judge, Jalgaon, in the Civil Appeal No. 109 of 1981.

(2.) The appeal arises out of matrimonial proceedings. The appellant-husband had filed against his wife-respondent herein Hindu Marriage Petition No. 246 of 1980 in the Court of the Civil Judge, (Senior Division), Jalgaon, for dissolution of marriage by decree of divorce. This petition was filed in August 1980. The wife was served with the writ of summons thereof. However, as she was absent, she was marked ex-parte. This was on November 11, 1980. On December 6, 1980 evidence on affidavit was taken in the husbands matrimonial petition in the absence of the respondent-wife. The matter was then posted for judgment on December 8, 1980. On the morning of that day December 8, 1980 the wife appeared in Court along with her Counsel. She filed an application (Exhibit 18) for setting aside the ex-parte order. In support, she also filed her affidavit at Exhibit 19. All these happened undisputedly before the judgement was delivered. This application of the wife was opposed by the husband. Ultimately, the learned trial Judge dismissed the wifes application (Exhibit 18) on January 30, 1981 and on the same day he decreed the husbands petition for dissolution of marriage by a decree of divorce. Against the said decree the filed Civil Appeal No. 109 of 1981 to the District Court, Jalgaon. The learned District Judge, who heard the said appeal, allowed the same, set aside the trial Courts decree and sent back the proceedings to the trial Court for hearning and decision of the husbands matrimonial petition on its own merits and in accordance with law. It is against order that the husband has preferred the present appeal.

(3.) Contention of the learned Counsel for the appellant-husband is that the impunged order is not justified and that notwithstanding the fact that the matrimonial petition was heard and decided on affidavits only on the side of the husband and in the absence of the wife the learned District Judge should have considered the said affidavits and then decided the appeal in question against the divorce decree on its own merits. Submission in this context is that it was not open to be learned District Judge to considered the rejection of the wifes application (Exhibit 18). All that the learned District Judge was to do was to hear and decide the same only in the light of the affidavits on record in the matrimonial petition. It is not possible to agree with this contention. Here is a case where for very good reasons and for reasons more than justified the learned District Judge has in the interests of justice set aside the decree of divorce and has sent back the matter to the trial Court for hearing and deciding the main divorce proceeding on their merits and in accordance with law after giving opportunity to the wife who had not been heard on the merits of the husbands claim for divorce. Materials show that the husband had either filed yet another matrimonial petition being Petition No. 213 of 1979 for judicial separation. In those proceedings the wife had put in her appearance, had already engaged an Advocate on her behalf and had actually participated therein. However, even while the said proceedings were pending, the husband chose to file yet another matrimonial petition and this time for dissolution of marriage by decree of divorce. In this latter divorce proceeding, the wife was no doubt served but, as submitted by her and also on her behalf, she was under the genuine and bona fide impression that the summons was in respect of the proceedings for judicial separation which were also pending. It never struck her, as would not normally strike a litigant situated in such circumstances, that the husband had even during the pendency of his judicial separation proceedings filed a second matrimonial proceedings for divorce and that the summons received by her was in respect of the divorce proceedings. Therefore, under this impression and belief and as she had already engaged an Advocates in the judicial separation proceedings the wife did not feel it necessary to go all the way from her place of residence at Mankhurd in Bombay to Jalgaon which would be at least about 250 to 300 miles and where the matrimonial proceedings were pending.