Bombay High Court


Bombay High Court: In a case filed by a wife (‘appellant') challenging the Family Court order that granted decree of divorce without giving her opportunity to adduce evidence and without deciding her interim application for maintenance, a Division Bench of A S Chandurkar and Urmila Joshi Phalke, JJ., remanded the matter back to the Family Court to decide the proceedings afresh by giving opportunity to both the sides (husband and wife) to adduce the evidence. The Court also issued directions to the Trial Court to decide the interim application preferred by the appellant for maintenance pendente lite in accordance with the provision of Hindu Marriage Act, 1955.

The appellant and defendant got married and some marital disputes arose, due to whichshe left the matrimonial home and did not return even after consistent requests made by the husband alleging cruelty. The appellant-wife then filed for maintenance under Section 125 of Criminal Procedure Code before Family Court, Nanded which was thereby allowed and maintenance at the rate of Rs.3,000/- was granted to the children however rejecting the claim by appellant-wife.

Thereafter, the husband filed for restitution of conjugal rights, but the appellant did not return and then he filed for decree of divorce in July 2018 on the grounds of cruelty and desertion. The appellant filed her written statement in January 2019 and filed an application under Section 24 for maintenance pendente lite on the same day. The Family Court without deciding the interim application decided the petition by granting the decree of divorce on the ground that that after sufficient opportunity appellant wife remained absent and, therefore, matter is proceeded and accordingly decided.

The Court noted that the roznama reflects that it is not only the appellant-wife who remained absent during the proceedings, but, on several occasions both the parties were absent and on some occasions even the respondent-husband remained absent. Though the appellant had filed an interim application for maintenance pendente lite, it was not decided and the main petition for divorce was decided without assigning any reason even without following the timeline that interim application is to be decided within 60 days.

The Court further noted that Section 24 of Hindu Marriage Act, 1955, is a benevolent provision enacted with the object to provide relief by way of maintenance and litigation expenses to the spouse. In the above circumstances, it is necessary to give proper opportunity to the appellant to defend the grounds of divorce by adducing the evidence.

The Court thus set aside the decree for divorce and remanded back to the Family Court, Akola to decide afresh by affording an opportunity to both the sides to lead evidence.

[Chanda Rathod v. Prakash Singh Rathod, 2022 SCC OnLine Bom 2760, decided on 19-09-2022]

Advocates who appeared in this case :

Ms. Shilpa Tapadia, Advocate, for the Appellant;

Shri Ravikumar Tiwari with Shri C.A. Joshi, Advocate, for the Respondent.

*Arunima Bose, Editorial Assistant has put this report together.

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