1 fca.59.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.59 OF 2010 WITH CIVIL APPLICATION NO.112 OF 2010 IN FAMILY COURT APPEAL NO.59 OF 2010 Dr.Mrs.Rati Manish Borade ...Appellant Versus Mr.Manish Ramesh Borade ...Respondent ...... Mr.Nilesh B.Pawaskar for Appellant. Mr.Vaibhav Sugdare for Respondent. ...... CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ. DATED:- AUGUST 17, 2010. P.C. 1. Heard Counsel for the parties. 2. This Appeal takes exception to the order passed by the Family Court No.6, Bandra, Mumbai dated 3rd March 2010 in Petition No.A-663/2009. By the said decision, the Family Court has allowed the Petition filed by the Respondent/husband for dissolution of marriage solemnised on 4th July 2007 between the Appellant and the Respondent and granted decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. The said Petition was filed on 23rd March 2009. Summons was issued on 24th March 2 fca.59.10.sxw 2009. Pursuant to the said summons, the Respondent authorised her mother to appear before the Court when the matter was made returnable on 2nd April 2009. The mother made appearance on the basis of the purported Power of Attorney in her favour. At her request, the matter was deferred till 2nd May 2009 for filing of written statement. Again on that date, the Appellant was not personally present but was represented by her mother before the Court. An application was filed by the mother on behalf of the Appellant for adjournment. The matter was deferred till 19th May 2009. Once again, the Appellant’s mother appeared before the Court and asked for further time which was granted and the matter was adjourned to 3rd June 2009. Since no written statement was filed by that date, the Court eventually proceeded with the matter without written statement. That fact has been noted in the order dated 3rd June 2009. Later on, the Respondent husband filed his affidavit in lieu of examination-in-chief on 6th July 2009. Immediately thereafter, on 8th July 2009, the Appellant caused to file Application Exhibit 5 before the Trial Court for recall of order passed on 3rd June 2009 of no written statement. We would think it apposite to reproduce the relevant part of the affidavit-cum-application filed by the Appellant Exhibit 5 which reads thus : 3 fca.59.10.sxw “2. I say that I was not served with the copy directly due to my studying problem I am not able to travel from USA to Mumbai (India) to contest the petition personally. 3. I say that I am also having financial problems to come to India. I say that I came to know that ex parte order was passed in this matter to proceed without my reply. I say that I got a good case to defend the matter. I say that I should be given an opportunity to contest the matter by set aside the order by this Hon’ble Court. 4. I say that due to studying problems financial problems and also stress I am not able to engage an advocate earlier in this matter and the delay caused in filing the application if any be condoned by this Hon’ble Court. I say that I hereby undertake to send the written statement on next date. I say that I have made our sufficient cause to prove to set aside the order passed by this Hon’ble Court. If the order are not set aside great prejudice, harm and irreparable loss caused to me which may not be compensated in terms of money. If the orders are set aside no harm and irreparable loss to other side. I say that I may be given an opportunity as a right to defend a matter by set aside the order passed by this Hon’ble court. In the aforesaid facts I therefore pray:- a. That the Hon’ble Court may please to set aside the order to proceed with the matter without the written statement in the above mentioned M.J.Petition in the interest of justice and equity. Or b. Ad-interim relief in terms of prayer (a & b) c. Costs of the application be awarded. Such other and further relief as the Hon’ble Court may deem fit and proper.” 3. The matter was adjourned thereafter from 1st August 2009 to 21st August 2009 and again to 8th September 2009 at the request of the Appellant. Eventually on 30th September 2009, the Court finally disposed of the Application Exhibit 5 by passing the following order: 4 fca.59.10.sxw “ORDER The respondent is not present. The Application is not signed before the Indian Consulate at U.S.A. and ascertain the authenticity and the identity of the respondent. No proper reason for absence or not sending the authenticated application is shown. The application is rejected. Sd/- 30.09.2009” 4. Indeed, the Appellant questioned the correctness of the said order by filing Writ Petition No.9961/2010. The Appellant also caused to file application to stay the further hearing of the proceedings. No interim relief was granted in favour of the Appellant either by the Trial Court or for that matter, by the High Court where the Writ Petition was filed. Resultantly, the Trial Court proceeded with the hearing of the Petition before it. No cross- examination of the Respondent was insisted before the Trial Court nor any formal application in that behalf is produced before us. As a result, the Trial Court, on the basis of the uncontroverted evidence produced by the Respondent, proceeded to answer the controversy on hand. On analysing the allegations in the Petition and the uncontroverted evidence of the Respondent, the Trial Court has opined that the case for grant of decree of divorce on the ground of cruelty has been made out. Amongst others, the allegation of the Respondent that even though marriage took place on 4th July 2007, the same was not consummated till December 2007 when the 5 fca.59.10.sxw Appellant abruptly, without giving prior intimation to the Respondent, left her matrimonial house. Besides, the behaviour and conduct of the Appellant during the relevant period has also been deposed to by the Respondent which according to him, caused him mental cruelty. Taking overall view of the matter, therefore, the Trial Court granted decree of divorce as prayed for by the Respondent. 5. It is this decision which is subject matter of challenge in the present Appeal. Going by the allegations in the Petition and the uncontroverted evidence of the Respondent which substantiates the said allegations, it is not possible to suggest that the view taken by the Family Court is manifestly wrong or perverse. If the evidence of the Respondent has remained uncontroverted and unchallenged and he has spoken about the events which had caused him mental cruelty, there is no reason for non- suiting the Respondent. On the other hand, on the basis of the evidence so produced by the Respondent, the decree of divorce was inevitable. 6. The argument of the Appellant is that the matter proceeded ex-parte against the Appellant and she has not been given fair opportunity to contest the claim made by the Respondent. This argument though attractive at the 6 fca.59.10.sxw first blush, will have to be stated to be rejected. We say so because it is common ground that the Appellant made appearance before the Trial Court through her mother on 2nd April 2009. She was given sufficient opportunity to file written statement by adjourning the matter at least on three occasions from the date of appearance. However, no written statement was filed till 3rd June 2009 on which date, the Family Court eventually proceeded to record that the matter would now proceed without written statement. The Appellant made unsuccessful attempt in applying for setting aside of the said order in the first place before the Trial Court and subsequently, this Court by way of Writ Petition No.9961/2010. The Trial Court rejected the said Application for reasons recorded in its order dated 30th September 2009. We have also extensively reproduced the Application-cum-affidavit filed by the Appellant for recall of order dated 3rd June 2009. 7. Insofar as the Writ Petition filed before this Court is concerned, the same was required to be withdrawn on 4th March 2010 as the final order on the main Petition filed by the Respondent was pronounced on 3rd March 2010. 8. Reverting back to the case made out in the Application Exhibit 5, all 7 fca.59.10.sxw that the Appellant has said is that she could not file the written statement on account of financial problems and also stress due to her preoccupation with her further studies in U.S. No other reason is stated. The case so made out, in our opinion, is vague. Significantly, the said Application came to be dismissed by the Trial Court on 30th September 2009 on the ground that the same was not signed by the Appellant before the Indian Consulate at U.S.A. to ascertain the authenticity of the identity of the Appellant. Further, no proper reasons for absence or not sending the authenticated application is shown. Insofar as the first reason which weighed with the Trial Court that the Application was not signed by the Appellant before the Indian Consulate at U.S.A. is concerned, is reinforced from the record. The Application-cum-Affidavit was only notarised before the Notary Public, State of Texas. That was not sufficient compliance. In any case, even if the Application was to be entertained as if it complied with the authenticity or the identity of the Appellant, as aforesaid, no material facts are forthcoming as to what prevented the Appellant to file the written statement on or before 3rd June 2009 inspite of the fact that she made appearance before the Trial Court through her mother on that date and sought adjournment for that purpose on more than one occasion. Inasmuch as on 2nd April 2009, the matter was adjourned to 2nd May 2009 and once again to 19th May 2009. 8 fca.59.10.sxw Eventually, on 3rd June 2009, the Court proceeded to pass the order of no written statement. There is absolutely no explanation in the Application- cum-Affidavit Exhibit 5 in this regard, much less, sufficient cause or special reasons which prevented the Appellant to file the written statement within the extended time. If the order passed on 3rd June 2009 was to attain finality and we have no doubt whatsoever that the same needs to be affirmed, it necessarily follows that the matter had then legitimately proceeded before the Trial Court on the basis of the evidence produced by the Respondent. It cannot be disputed that even if no written statement was filed by the Appellant, there was no reason why the Advocate appearing for the Appellant before the Trial Court or for that matter, the mother who was appearing as Constituted Attorney of the Appellant should not have insisted for cross-examination of the Respondent. There is nothing on record to suggest that such attempt was made. If so, the evidence produced by the Respondent has been allowed to go unchallenged. In such a situation, it is inappropriate for the Appellant to contend that the Appellant did not get fair opportunity before the Trial Court. Whereas, the case on hand is such, wherein the Appellant had all opportunity but failed to avail of the same from time to time. As aforesaid, going by the uncontroverted evidence of the Respondent/Petitioner, the allegations made in the Petition have been 9 fca.59.10.sxw substantiated and those allegations would certainly constitute ground for decree of divorce on the ground of causing mental cruelty to the Respondent husband. 9. Although it may not be so relevant for deciding the present Appeal, however, since our attention has been invited to the other proceedings between the parties, we would only make reference thereto and it is noticed that the Appellant herself had filed Petition for judicial separation and in the alternative, to grant Decree of Divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 against the Respondent on 5th December 2007, which is stated to be dismissed for non-prosecution on 4th December 2009 and that order has been allowed to attain finality. In other words, even the Appellant has resorted to proceedings for grant of Decree of Divorce on the ground of Respondent husband having caused mental cruelty to her. 10. Be that as it may, as aforesaid, so far as the finding recorded by the Court below in the impugned Judgment, the same is unexceptionable. On the basis of the said finding, the Decree of Divorce granted on the ground of mental cruelty caused to the husband is inevitable. 10 fca.59.10.sxw 11. Accordingly, this Appeal ought to fail. The same is therefore dismissed. (A.A.SAYED, J.) (A.M.KHANWILKAR, J.)