Anupriya Santosh Unnithan v. Santosh Ramchandra Unnithan

1. Rule. Rule is made returnable forthwith with the consent of the parties.

2. The present appeal is filed by the Appellant-wife being aggrieved and dissatisfied with the Judgment and order dated 18.02.2021 passed by the Learned Judge, Family Court No. 4, Pune, bearing Petition No. A-1442 of 2018. The original proceedings are filed for divorce by the Respondent-husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

3. The parties got married on 12.04.2015 at Kerala, as per Hindu customs and rites. The Respondent-husband filed a marriage petition i.e. Petition No. A-1442 of 2018 in the Family Court, Pune seeking dissolution of marriage on the ground of cruelty.

4. The Appellant submitted her written statement (Exh.14) denying all the allegations.

5. The matter was initially filed in Kolhapur but, it was later transferred to the Family Court, Pune. After the matter was transferred to the Family Court, Pune, the Respondent-Husband examined himself, as P.W.1. However, PW-1 was not crossexamined, as the Appellant failed to contest the matter. As the Appellant-wife and her advocate did not remain present nor did the appellant lead evidence.

6. Thus, the evidence was closed by the Ld. Judge, Family Court, Pune vide order dated 20.02.2020. Thereafter, the Family Court vide Judgment and order dated 20.02.2020 dissolved the marriage, which was solemnized on 12.04.2015 on the ground, that the Appellant-wife had inflicted cruelty upon the Respondenthusband.

7. Learned Counsel for the Appellant submits that the Appellant was not informed of the date before the trial Court and hence was unable to appear and as such unable to cross-examine the respondent or lead evidence. Learned Counsel further submits that due to lockdown, the appellant’s lawyer did not inform her, resulting in her unable to remain present. He thus states that the appellant was deprived of an opportunity to cross-examine the Respondent as well as examine herself/witnesses. Learned Counsel submits that the appellant in fact, wanted to lead evidence and contest the case on merits. He submits that the reasons given by the learned Judge, that the marriage deserves to be dismissed on the ground of cruelty, is perverse. He contended that the judgment, order and decree passed by the learned Family Court be quashed and set aside.

8. The Counsel for the Respondent-husband supported the judgment and order passed by the learned Judge, Family Court. He submitted that inspite of being given ample opportunities to the Appellant-wife, she failed to appear. He submitted that the advocate appearing for the Appellant-wife did not appear and that the Appellant did not lead any evidence. He submits that in these circumstances, the judgment and order passed by the learned Judge, Family Court, was legal, warranting no interference.

9. Heard the parties. Perused the documents on record.

10. The marriage between the parties is dissolved by the learned Judge, Family Court, Pune on the ground of cruelty. It has came on record that a petition was initially filed at Kolhapur and thereafter the same was transferred to Pune. It has further came on record that the Appellant-wife has not cross-examined the witness of Respondent-husband nor has she led any evidence. It appears from the record, that a fresh notice was served on the Appellant-wife, however, despite service, she did not appear. Pursuant thereto, the Ld. Judge, Family Court proceeded with the case and dissolved the marriage, only on the ground, that the Appellant-wife has not examined herself or her witness nor has she cross-examined the Respondent-husband. The only ground which appears to have weighed with the learned Judge, Family Court was that the Appellant did not remain present. There is no finding recorded in the impugned Judgment and order passed, that the respondent-husband has proved that he was treated with cruelty. It is settled position of law that even if a party i.e. respondent does not appear or does not file his/her written statement, the Court should consider the case of the Petitioner on merits and should not mechanically decree the proceedings.

11. The Hon’ble Supreme Court in the case of Balraj Taneja & Anr. v. Sunil Madam & Anr. [(1998) 8 SCC 396] has held that, “Whether it is a case which is contested by the defendants by filing a written statement, or a case which proceeds ex parte and is ultimately decided as an ex parte case, or is a case in which the written statement is not filed and the case is decided under Order 8 Rule 10, the court has to write a judgment which must be in conformity with the provisions of the Code or at least set out the reasoning by which the controversy is resolved.”

12. In the present case admittedly, the Learned Judge, Family Court had not considered the case of the appellant on merits and had mechanically decreed the proceeding only on the premise that the Appellant-wife had not appeared. There is no reason assigned whatsoever to show the wife had caused cruelty to the husband and as to why the decree is required to be passed. The only reason which has weighed with the Learned Judge is, that the Appellant-wife did not appear.

13. The Apex Court in the matter of Ramesh Chand Ardawatiya Vs. Anil Panjwani [(2003) 7 SCC 350] has held that even when the matter proceeds ex-parte, the trial court should scrutinize the available pleadings and documents, consider the evidence adduced and proceed to decide the matter on merits, and that merely because the defendant is absent, the Court shall not admit the evidence.

14. The necessity to give reasons has been well considered by the Apex Court in Tutul Kumari Sen Vs. State of Jharkhand & Anr. [(2009) 13 SCC 495]. It is observed by the Apex Court that,

8. "3.... This Court in State of Orissa v. Dhaniram Luhar has while reiterating the view expressed in the earlier cases for the past two decades emphasised the necessity, duty and obligation of the High Court to record reasons in disposing of such cases. The hallmark of a judgment/order and exercise of judicial power by a judicial forum is to disclose the reasons for its decision and giving of reasons has been always insisted upon as one of the fundamentals of sound administration justicedelivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice... Any judicial power has to be judiciously exercised and the mere fact that discretion is vested with the court/forum to exercise the same either way does not constitute any licence to exercise it at whims or fancies and arbitrarily as used to be conveyed by the well-known saying:'varying according to the Chancellor's foot'. Arbitrariness has been always held to be the anathema of judicial exercise of any power, all the more so when such orders are amenable to challenge further before higher forums… Such ritualistic observations and summary disposal which has the effect of, at times,… cannot be said to be a proper and judicial manner of disposing of judiciously the claim before courts. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind.”