1 fca95.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.95 OF 2005 WITH FAMILY COURT APPEAL NO.96 OF 2005 Indira V.Nair .. Appellant. Vs. Vijachandran T.V. and Anr. .. Respondents. Mr.Sachin Chavan with Mr.S.S.Kulkarni for the appellant. Mrs.Geeta Mulekar for respondent no.1. Mr.Pravarthak Pathak i/b Uday Warunjikar for respondent no.2. CORAM : D.B.BHOSALE & M.L.TAHALIYANI, JJ. DATED : 15TH SEPTEMBER, 2011. P.C. 1. These two appeals are directed against a common judgment rendered by the Family Court, Pune by which a petition being P.A.No.580/2002 filed by the respondent-husband for divorce on the ground of cruelty has been decreed, and his other petition being No.P.B.No.34/2002 has been decreed partly. 2. The first petition (Petition No.A-580/2002) was filed for dissolution of marriage on the ground of adultery and cruelty as provided for under section 13(1)(i) and (i-a) of the Hindu Marriage Act, whereas Petition No.B-34/2002 was filed for declaration that the suit flat, as described in paragraph 2 of the petition, is their matrimonial property. The respondent-husband had also prayed for permanent injunction restraining the appellant-wife from creating any kind of obstruction to his right to have access to the said flat. S 2 fca95.05 3. At the outset, learned counsel for the appellant-wife, on instructions, prays for withdrawal of Appeal No.95 of 2005 whereby she challenged the decree of divorce passed by the Family Court in P.A.No.580/2002. In view thereof the Family Court Appeal No.95 of 2005 is disposed of as withdrawn and consequently the decree of divorce passed by the Family Court in P.A.No.580/2002 dated 16.7.2004 stands confirmed. 4. Insofar as another petition being P.B.No.34/2002, filed by the respondent-husband seeking declaration that the suit flat is their matrimonial property, is concerned learned counsel for the appellant submitted that it may be set aside and the matter be remanded to the Family Court for its decision afresh on merits after giving an opportunity to the parties to amend the pleadings and lead further evidence. In support of this submission, learned counsel for the appellant invited our attention to the prayers made in Petition No. 34/2002 and submitted that the respondent-husband had filed the said petition for declaration that the suit flat, as described in paragraph 2 of the petition, is their (the appellant and the respondent) matrimonial property. He submitted that despite such prayer being made in the petition, the Family court while decreeing the petition partly declared both, the husband and the wife, as joint owners of the property without giving an opportunity to the appellant-wife to prove that she was exclusive owner of the said property or to the respondent-husband to prove that he is the joint owner of the flat. The prayers made in the petition P.B.No.34/2002 3 fca95.05 reads thus: “1. The suit flat described in Para No.2 of the plaint may be declared as the matrimonial property of the petitioner and the respondent. 2. The respondent may be permanently restrained from creating any kind of obstruction for free access to the flat to the petitioner and his daughter. 3. Any other just and proper order may be passed.” 5. While dealing with both the petitions together the Family Court, insofar as petition No.34 of 2002 is concerned, framed the following issue: “3. Whether respondent wife challenged and refused proprietory rights of the husband over he suit premises and thereby invaded on his legal rights and title ?” 6. In view of the prayer’s in the petition and the issue framed by the Family Court, learned counsel for the appellant submitted that neither declaration as to ownership of the flat was sought nor an issue to that effect was framed and hence parties did not have an occasion to lead evidence to prove the ownership. This submission was not disputed by learned counsel for the respondents. 7. While dealing with aforementioned issue the Family Court in paragraph 10 of the judgment observed thus : 4 fca95.05 “All though the respondent-wife came with a bold case of being the exclusive owner of the suit premises, which is exclusively in her use and occupation, she did not bother to tender any plausible and cogent evidence to support her statement. She is absolutely silent on this point in her own evidence and went one step ahead by choosing not to challenge or refute assertive statement of the petitioner-husband on this particular point wherein he testified about the flat standing in their joint name.” 8. The appellant-wife claims that though the flat stands in their joint name, in fact she had paid entire consideration from her income. As against this, according to the respondent-husband, the loan instalments were paid from the account of the appellant-wife in view of clear understanding between the two that she would repay the loan and he would take responsibility of the household expenses. 9. In this backdrop learned counsel for the appellant submitted that there was no occasion for the appellant-wife to lead any evidence to prove her exclusive ownership of the suit flat. Similarly, even the respondent-husband also did not produce any material on record in support of his contention of joint ownership of the flat. Learned counsel for the appellant, therefore, prayed for remand of the matter with liberty to the parties to amend the pleadings and lead additional evidence in respect of the suit flat. The submissions advanced by the learned counsel for the appellant were not disputed by learned counsel for the respondent-husband. In the circumstances we pass the following order: 5 fca95.05 The judgment and decree dated 16.7.2004, insofar as the petition filed by the respondent-husband being Petition No.B-34/2002 is concerned, is set aside. The petition No.B-34/2002 is restored to file and the matter is remanded to the Family Court, Pune for its hearing on merits afresh. It is open to the parties to amend the pleadings and more particularly the prayers in the petition, and lead additional evidence, if any, in support of their claims in respect of the suit flat. The Family Court shall decide the said petition afresh on merits in accordance with law. Insofar as the decree of divorce passed by the Family Court in Petition A.No.580/2002 filed by the respondent-husband is concerned it stands confirmed. It is needless to mention that the Family Court while deciding the petition afresh may take into consideration the effect of confirmation of the decree of divorce. While passing this judgment and order we shall not be understood to have expressed any opinion on merits of the case. All contents of the parties are kept open. No costs. (M.L.TAHALIYANI,J.) (D.B.BHOSALE,J.)