1 fca25.04.sxw ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.25 OF 2004 WITH CIVIL APPLICATION NO.186 OF 2010 IN FAMILY COURT APPEAL NO.25 OF 2004 Smt. Meena Tilakraj Jangda. Age 38 years, Occ.Housewife R/at 106, Dheeraj Bassera, Chincholi Bunder Road, Malad(West), Mumbai 400 064. ..Appellant. v/s. Tilakraj Omprakash. Jangda. Age 44 years, Occ. Business, R/at 106, Dheeraj Bassera, Chincholi Bunder Road, Malad(West), Mumbai 400 064. ..Respondent. Mr. Jaydeep S. Deo for appellant. Mr. Mohan B. Jadhav for respndent. CORAM:- A.M.KHANWILKAR & A.A.SAYED, JJ DATED :- AUGUST 09, 2010. 2 fca25.04.sxw JUDGMENT(Per A.M.Khanwilkar,J) 1. Heard Counsel for the parties. 2. This Appeal takes exception to the Judgment and Decree passed by the Principal Judge, Family Court Bombay at Bandra dated 24th April, 2003 in Petition No. A-377/2002. That Petition was filed by the Respondent husband for decree of divorce on the ground of cruelty under section 13(1) (ia) of the Hindu Marriage Act and for other reliefs. This marriage was solemnised between the Appellant and Respondent on 22nd November, 1980 at Pune according to the Hindu Vedic Rites and ceremonies. For the nature of order that we propose to pass, it is not necessary to burden this Judgment by reproducing all the facts of this case. 3. Suffice it to observe that the Petition before the Family Court proceeded exparte against the Appellant. The Appellant after service had appeared before the Family Court but after conciliation effort, no appearance was made. However, the case of the Appellant is that the Appellant is uneducated person and has studied only upto 10th standard. Besides, she was staying in the same house alongwith the Respondent during the relevant period. Even after conciliation efforts, the Appellant 3 fca25.04.sxw was staying in the same house alongwith the Respondent and their minor son. That fact is not disputed before us. According to the Appellant, she was kept in dark about the decree passed on 24th April, 2003. As a matter of fact, she continued to stay with the Respondent in the same house alongwith minor son even thereafter until 15/7/2003. Considering the stand taken by the Appellant, which is quite probable, we are satisfied that the Appellant did not pursue her remedy before the lower Court under mistaken belief. In the circumstances, in the interest of justice, to give one opportunity to the Appellant, we set aside the impugned Judgment and Decree, which is a drastic order to be passed without fair opportunity to the Appellant. Instead, we restore the Petition which was filed before the Family Court to its original number to be proceeded afresh from the stage of filing of the Written Statement. The Appellant through counsel before this Court produced the Written Statement. In our opinion, the appropriate course for the Appellant is to submit the Written Statement before the Family Court where the proceedings are relegated. That shall be done on the first day on which the matter will appear before the Family Court pursuant to the present order. 4. Accordingly, we allow this appeal. Impugned Judgment and Decree 4 fca25.04.sxw is set aside. Instead, the Petition No.A-377/2002 is restored to file to its original number, to be proceeded afresh from the stage of filing of Written Statement. All questions are left open to be decided on its own merits in accordance with law. The parties shall appear before the Family Court at Pune on 30th August, 2010 at 11 a.m. or so soon thereafter when the Court would assemble on that date. The Appellant shall tender Written Statement before the Family Court on that date. The Family Court would then assign suitable date of hearing and make efforts to expeditiously dispose of the Petition as the Petition pertains to year 2002. 5. Counsel for the Respondent on instructions in all fairness submits that the Respondent would continue to pay the maintenance amount which was operating for all this time. That assurance is accepted. This arrangement shall continue till such other order to be passed by the Family Court in the remanded proceedings. 6. In view of disposal of the Appeal, nothing survives for consideration in Civil Application. The same is disposed of accordingly. (A.A.SAYED,J) (A.M.KHANWILKAR, J)