1 Fca171-10 dmt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 171 OF 2010. WITH CIVIL APPLICATION NO. 276 OF 2010 Suman Hanuman Yadav, aged about 36 years, Indian Inhabitant, Residing at Room No. 70, Prem Nagar, Shekhar Chawl, Irla, Vile Parle (W), Mumbai – 400050. .. Appellant. Vs. Hanuman Manikram Yadav aged about 37 years, Indian Inhabitasnt, Occupation: Business, resding at Room No. 131, Vaingankar House, Siddharth Nagar, Vakola Pipe Line Santacruz (East), Mumbai – 400055. .. Respondent. Mr. Ashok Toraskar for the Appellant. Mr. Rahul Karnik for the Respondent. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. DATE : DECEMBER 22, 2010. JUDGMENT (Per U.D. Salvi, J.) 2 Fca171-10 This appeal challenges the judgment and order dated 8th December, 2009 passed by the 2nd Family Court, Mumbai in MJ Petition No. A-851 of 2009. 2. The Respondent-Petitioner filed a petition under Section 13(1) (1a) of Hindu Marriage Act, 1955 against his wife the Appellant alleging cruel treatment meted out to him by the Appellant throughout his matrimonial life which commenced with his marriage with the Appellant on 28/5/1995 at Village Sangrampur, Dist. Basti, U.P., as per Hindu rituals. The respondent-petitioner alleged that there were differences between him and his wife the appellant on the luxurious life style which the appellant wanted to live at the cost of unnecessary expenses. This thus culminated in the declaration made in writing by his wife, the appellant, on 6.2.2001 that she did not desire to continue the marriage between the two. However, the petitioner further alleged, the things were patched up with the intervention of the relations and friends and three daughters – Arti, Ankita and Gun were born during the period between September 1998 and May, 2005. 3. It was also the case of the petitioner that an attempt was made to end his life by administering sulfa drugs to him at his native place in 3 Fca171-10 U.P. In May, 2007 by the petitioner and he preferred not to lodge any complaint against his wife, the appellant, in order to save himself from ignominy. The petitioner further alleged that the relations between the two continued to be sour after he returned to Mumbai in June, 2006 in as much as the appellant quarreled, mentally tortured and physically assaulted him and one such quarrel resulting in threats to commit suicide and kill him prompted him to lodge a N.C. Complaint at Juhu Police Station o 24.12.2007. All these acts, according to the respondent-petitioner, entitled him to the decree of divorce. 4. It appears from the record that the notice/summons of the said petition was served on the appellant at her Vile Parle address on 20.7.2007 and the marriage counsellor Mrs. S.H. Kapile had reported that she could interview the petitioner only as the respondent remained absent and as such, the reconciliation could not be worked out between the parties. The record further reveals that the petition proceeded ex-parte eventually to end in the dissolution of the said marriage. 5. A perusal of the impugned judgment reveals that the learned Family Court in the given circumstances could have access only to the 4 Fca171-10 testimony of the respondent-petitioner and the documents, namely, the declaration dated 6.2.2001 and copy of the N.C. Complait dated 24.12.2007 produced in support of the testimony. The learned Family Court on the material afforded by the respondent-petitioner reached a conclusion that the respondent-petitioner was subjected to cruelty as a result of the appellant’s conduct particularly her reluctance to cohabit with him which led to the declaration dated 6.2.2001 Exhibit-12 and the threats administered to him. In absence of the appellant-respondent in the petition before the Family Court, Mumbai it was not possible for the learned Family Court, Mumbai to have tested the version of the Respondent/Petitioner regarding the relations between the parties. 6. Now, it has been urged by the appellant that she was not served with notice of the petition any time before and there was no occasion for her to acknowledge the receipt of any such notice. She denied the execution of the declaration relied upon by the respondent- petitioner in support of his case for divorce. Keeping aside this case of the appellant one wonders at the propriety of executing such declaration when the law afforded the means to unshackle the bonds of matrimony. It is even more surprising that after such declaration the parties continued to have 5 Fca171-10 biological relations and gave birth to two more off-springs after the alleged enstrangement of their relations. It has been pointed out that the N.C. Complaint made no reference to the threats of killing the respondent- petitioner. These facts pose many questions which can be efficaciously resolved by the contest between the parties. It is, therefore, just and necessary to allow the appeal and relegate the case to the Family Court, Mumbai for resolution of the controversy between the parties. Hence, the order. ORDER The appeal is allowed. The judgment and decree dated 8.12.2009 of dissolution of marriage between the parties is set aside. The parties shall appear before the Family Court, Mumbai on 24.1.2011. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.) 6 Fca171-10