QAISAR DEORAO DANDAWATE Vs. DEORAO UDHORAO DANDAWATE

JUDGEMENT

(1.) THE appellant has filed this appeal against the judgment and decree dated 11.10.1993 passed by Family court No.2, Bandra in Petition No.A.957 of 1990 whereby the Family Court passed the decree of divorce on the ground of cruelty.

(2.) THE respondent, in this case, is a husband of the present appellant. He filed the petition before the Family Court for dissolution of marriage under section 27(1)(d) of the Special Marriage Act, 1954. It is contended on behalf of the respondent that his marriage with the appellant was solemnised at Wardha on 27.10.1975. At the time of marriage, the Original respondent-wife was a divorcee. Out of their marriage, on 20.3.1978, a son was born named Raja at Nagpur. After the marriage, the appellant went to reside with the respondent at Nagpur in Nagbhavan Government Quarters as the respondent was then in Government Service in Education Department. In January 1989, the respondent resigned on account of harassment caused to him by the appellant who used to lodge complaints against him to his higher authorities. He, therefore, joined the Education Department of the Municipal Corporation of Greater Bombay in or about February 1989 and was staying in the Government Municipal Quarters in Hindu Colony, Dadar, Bombay 400 014.

(3.) MR .Desai, learned counsel appearing on behalf of the appellant contended that on 13.5.1993 the appellant met with an accident at Nagpur due to which she had suffered multiple fractures. Therefore, she could not attend the Court. He further contended that she left the hospital after few days, still the appellant was illdisposed as there was no proper heeling of the fractures. Ultimately on 20.1.1994 bone grafting operation of the forearm was done due to which now she is in a position to use her hand. Due to this fact, she was unable to attend the court and, therefore the Family Court ought to have given her opportunity to lead evidence and then pass the decree. Mr.Rizvi, learned counsel appearing on behalf of the respondent contendent that bare look at the Roznama will go to show that the appellant was careless in not attending the Court and on many occasions her advocate also failed to attend the Court. After receipt of the information of the fracture of the appellant, the Court adjourned the matter from time to time from 28.6.1993 to 15.7.1993, then to 25.8.1993, 8.9.1993 on 8.9.1993 since the advocate for the appellant and the appellant herself were absent, the trial Court had no other alternative than to keep the matter for judgment on 14.9.1993, on 14.9.1993, an application was made by the advocate on behalf of the appellant for grant of some time for bringing stay order from the Higher Court. The matter was again adjourned on 15.9.1993. Thereafter, the matter was adjourned from time to time. i.e. from 15.9.1993 to 23.9.1993 and then to 8.10.1993 and ultimately the Family court has delivered the judgment on 11.10.1993. After going through the aforesaid Roznama and the reasoning given by the trial Court, Mr.Rizvi. appearing on behalf of the respondent, contended that the Family Court was justified in not allowing the appellant to lead evidence and decided the matter exparte.