High Court
Legal Reasoning
*7* fca70o22husband has not disputed the receipt of this notice and this wascrucial aspect demonstrating the conduct of the wife.12. In view of the above, we are of the view that theapproach adopted by the Family Court is erroneous. In view ofthe grounds raised by the wife including the circumstances ofbirth of a child, we deem it appropriate to remand the matter tothe Family Court, Aurangabad, so that the wife should beafforded an opportunity to participate in the proceedings by filingher Written Statement and leading evidence. We find this case tobe a fit case for remand. Thus, the impugned ex-parte judgmentand order passed by the Family Court at Aurangabad deserves tobe quashed and set aside. Hence, we pass the following order:ORDER(a)This Family Court Appeal is partly allowed.(b)The impugned judgment and order dated 23.08.2018passed by the Family Court, Aurangabad, in Petition No.A-80/2018, is quashed and set aside.(c)Petition No.A-80/2018 is remanded to the FamilyCourt, Aurangabad, for a fresh decision after affording anopportunity to the appellant/ wife to file her Written Statement *8* fca70o22and lead evidence.(d)Parties are directed to appear before the FamilyCourt at Aurangabad on 07th April, 2025.(e)The Family Court is directed to expedite theproceedings and take a decision afresh. kps ( PRAFULLA S. KHUBALKAR, J.) ( R.G. AVACHAT, J.)
Arguments
*1* fca70o22IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFAMILY COURT APPEAL NO.70 OF 2022Sayyad Lubna w/o Javed,Age : 29 years, Occ. Household,R/o Road No.1, Infront of HasmiyaMasjid, Vyankatesh Nagar, Latur,Tq. and Dist. Latur....APPELLANT(Wife)-VERSUS-Sayyad Javed s/o Sayyad Khayyum,Age : 34 years, Occ : Business,R/o Plot No.67, Infront of Aziz Vila House,Jalan Nagar, Backside of Railway Station,Aurangabad....RESPONDENT(Husband)…Shri Hanumant P. Jadhav, Advocate for the Appellant/ Wife.Shri Yogesh B. Bolkar, Advocate for the Respondent/ Husband.... CORAM : R.G. AVACHAT & PRAFULLA S. KHUBALKAR, JJ.DATE : 12th March, 2025.JUDGMENT ( Per Prafulla S. Khubalkar, J. ) :- 1.Heard the learned counsels for both sides. *2* fca70o222.This appeal was admitted on 14.10.2022. The appealis taken up for final hearing.3.By the instant appeal, the appellant/ wife haschallenged the judgment and order dated 23.08.2018 passed bythe Family Court, Aurangabad, in Petition No.A-80/2018, whichwas a petition filed by the respondent/ husband seekingrestitution of conjugal rights.4.By the impugned judgment and order, the petitionwas allowed directing the appellant/ wife to resume conjugalsociety of the husband within a period of two months. Theprimary ground of challenge is that the petition was decidedwithout service of notice upon the appellant/ wife and resultantlyan ex-parte judgment and order is passed.5.The learned Advocate Shri Jadhav for the appellant/wife vehemently submits that the impugned judgment and orderis unsustainable in law being based on an erroneous approach.The impugned judgment is an ex-parte decision without serviceof notice upon the appellant herein and without considering thereasons for non appearance of the wife. He submits that theFamily Court has arrived at unilateral conclusion based on *3* fca70o22uncontroverted testimony of the husband and his father. TheFamily Court has failed to appreciate that the wife was notserved with proper notice and that she was unable to attend thecourt on account of birth of a child to her. He submits that theFamily Court accepted entire version of the husband and withoutany cogent evidence, straightaway concluded that the wife haswithdrawn from company of the husband and, therefore, thehusband was held to be entitled for decree of restitution ofconjugal rights.6.Per contra, the learned Advocate Shri Bolkar for therespondent/ husband justifies the impugned judgment and order.He submits that the wife had failed to avail opportunity ofparticipating in the proceedings and the Family Court has rightlyappreciated evidence before it. He submits that the impugnedjudgment is based on evidence before the Family Court andneeds no interference at all.7.We have considered rival submissions and perusalthe appeal paper book.8.A perusal of the impugned judgment shows that it isan ex-parte judgment wherein, the Family Court has observed *4* fca70o22that the wife had not appeared despite service of notice. It has tobe seen that the wife had filed a separate proceeding before theFamily Court at Latur bearing Petition No.E-25/2018 claimingmaintenance under Section 125 of the Code of CriminalProcedure, 1973, for herself and her two children, one is agedfour years and another is four months. The wife was prosecutingthis petition claiming maintenance through a lawyer and,therefore, her failure to appear in the proceedings filed by thehusband at Aurangabad cannot be considered to be intentionalavoidance of the proceedings. The wife has categorically raisedthe ground that she was not served with the notice in PetitionNo.A-80/2018 and could not attend the said proceedings filed bythe husband. It is undisputed that the appellant/ wife haddelivered a child on 27.05.2014 and she was required to take careof new born child. This has to be considered to be a genuinereason for the wife not prosecuting the proceedings before theFamily Court at Aurangabad.9.It is pertinent to note that in the proceedings filed bythe wife and her children claiming maintenance, the husband hasappeared and contested the said proceedings. He produced the *5* fca70o22judgment of Petition No.A-80/2018 (impugned judgment) beforethe Family Court at Latur and opposed the petition by pointingout the findings of the Family Court at Aurangabad aboutwithdrawal of company by the wife. The Family Court at Laturtreated the findings to be binding and with this observation, it hasrefused maintenance to the wife. As such, the finding aboutwithdrawal of company by the wife, which is infact in an ex-parte proceeding based on unchallenged evidence of the husband,is made the basis to conclusively decide that the wife is notentitled for any maintenance. In this regard, we are of theconsidered view that the findings of the Family Court atAurangabad in an ex-parte proceeding about withdrawal ofcompany by the wife, could not have been considered to bebinding in the proceeding under Section 125 of the Code ofCriminal Procedure filed by the wife before another FamilyCourt. Although the instant appeal is not dealing with thechallenge to the judgment of the Family Court at Latur denyingmaintenance to the wife, it has to be noted that the findings of theFamily Court at Latur have severe consequences upon the wife,to the detriment of her rights. *6* fca70o2210.A perusal of the impugned judgment shows that theFamily Court has straightaway accepted unchallenged evidenceof the husband and concluded that the wife has left the companyof the husband. In a proceeding which is conducted ex-parte, theTrial Court is expected to be more cautious while relying andaccepting the version of the witness, who is not cross-examined.The Family Court has simply believed evidence of the husbandto conclude that the wife has left company of the husbandwithout any genuine reason and passed the decree of restitutionof conjugal rights. 11.It has to be noted that the wife had earlier issued anotice dated 06.02.2018 to the husband calling upon him to takeher back for cohabitation. By this notice, she expressed herreadiness to resume matrimonial life with the husband. Thisnotice was served upon the husband and he had replied, butfailed to bring the wife back to home for cohabitation. Althoughthe Family Court has referred to this aspect in paragraph No.16of the impugned judgment, however, brushed aside this crucialaspect by simply observing that the wife has not come before theCourt for proving the said notice. It has to be seen that the