Case: Usha Uday Khiwansara Vs. Uday Kumar Jethamal Khiwansara

4. Few facts need to be mentioned to appreciate the short issue involved in the appeal5. The Appellant is the wife whereas the Respondent is the husband. The Appellant and the Respondent married on 07.02.1992. Unfortunately, due to various reasons, their married life was not cordial which eventually led to filing of divorce petition (486 of 2004) by the Respondent (husband) in the year 2004 against the Appellant (wife) in Pune Family Court6. The Respondent sought divorce inter alia on the ground of cruelty and desertion against the Appellant. The Appellant denied the allegations of cruelty/desertion and contested the petition by joining issues7. By order dated 19.06.2007, the learned Family Judge dismissed the Respondents divorce petition. He held that Respondent failed to make out any case of cruelty and desertion on the part of the Appellant so as to entitle him to claim a decree of divorce8. The Respondent felt aggrieved, filed first appeal (155/2007) before the High Court at Mumbai. By impugned order, the High Court allowed the Respondents appeal and set aside the order of the Family Judge and in consequence allowed the Respondents divorce petition by granting a decree of divorce in his favour on the ground of desertion. It is against this order of the High Court; the wife (Appellant herein) felt aggrieved and filed the present special leave to appeal in this Court.

Court's reasoning:
10. It is not in dispute that the High Court had allowed Respondents (husbands) appeal and passed the impugned order granting a decree of divorce without hearing the Appellant (wife). In other words, none appeared for the wife before the High Court in the appeal, which was, heard ex-parte. Such hearing of the appeal, which eventually resulted in passing an adverse order against the wife and dissolving the marriage undoubtedly caused prejudice to the rights of the Appellant-wife11. Since the Appellant wife thus stood denied of a chance to represent her case before the High Court, the logical consequence would normally have been to set aside the judgment and order under appeal and remit the matter for fresh consideration. At this juncture the learned Counsel appearing for both parties submitted that they were willing to part company on a note which would be mutually acceptable to either party. We see force in the submission made by both the learned Counsel and rather than relegating them to fight another round of battle, we consider the matter in that perspective12. It is not in dispute that the parties have been living separately for last more than a decade. It is also clear that there is absolutely no chance of both coming together to continue their marital life. It has also come on record that there is no issue born out of wedlock. It has also come on record that Appellant (wife) has been ailing for long time and living with her relatives in Wardha. It has also come on record that the Appellant (wife) has no independent income of her own and she is wholly dependent upon her family members. It has also come on record that the Respondent (husband) is quite resourceful person having his own or his family bungalow in a posh colony (Lakaki Road) in Pune where he is living.