Adhyaatmam
Bhaamini Vs. Jagdish Ambalal Shah [1997] INSC 126 (5 February 1997)
S.C.
AGRAWAL, G.B. PATTANAIK
ACT:
HEAD NOTE:
This
appeal by the wife arises out of a petition filed by the respondent in the
Family Court at Bandra in Bombay seeking divorce on the ground of cruelty and
desertion under Sections 13(1)(1a) and 13(1)(1b) of the Hindu Marriage Act,
1955. The parties were married on November 15, 1959. They have two children. The
divorce petition was filed on February 26, 1990.
It appears that during the period from 1990 to 1993 there was not much progress
in the said petition. The Bombay High Court, while disposing of the Writ
Petition No.37 of 1993 filed by the appellant, gave the following direction in
its order dated February 5, 1993:- "The Family Court, Bandra, is however
directed to hear and dispose of M.J. Petition No. A- 272/1990 as expeditiously
as possible and preferably, by the end of June, 1993." The appellant was
not being represented by any advocate before the Family Court at that time. The
date fixed before the Family Court in the divorce petition was March 9, 1993 but since the Presiding Officer was
on leave on that date, the matter was adjourned to April 28, 1993 on which date the case was adjourned to May 5, 1993 as the appellant was absent. On May 5, 1993 the appellant appeared before the Family Court and
prayed for time and the matter was adjourned to May 21, 1993. On May
21, 1993 when the case
was taken up the appellant was absent and in her absence the statement
(examination-in-chief) of the respondent, who was the petitioner in the divorce
petition, was recorded. It appears that the appellant reached the Court while
the statement of the respondent was being recorded. The matter was adjourned to
May 27, 1993 for further examination of the
respondent. On May 27,
1993 the respondent
was cross- examined by the appellant and the matter was adjourned for further
cross-examination to May
31, 1993 on which date
11 was adjourned on the request of the appellant to June 2, 1993. On June
2, 1993 the appellant
cross-examined the respondent but the cross-examination was not complete and
the matter was adjourned to June 4, 1993.
On June 4, 1993 an application for adjournment
signed by the appellant was submitted in the Family Court by Ms. Madhu Shetty,
an advocate, who was not representing the appellant in the case. On the said
application the Court, on June 4, 1993, passed an order taking note of the fact
that the appellant had personally come to the Court and she got the application
typed by the typist on the first floor of the Court building and that the
application had been presented by one advocate, Ms. Madhu Shetty, who was not
an advocate on record and was not representing the appellant in the case. In
the said order it is recorded that since the said advocate had stated that she
did not personally know the appellant, the typist was called and lie gave a
copy of the application to the counsel for the respondent. In the said
application for adjournment the appellant had sought adjournment on the ground
that a friend of her had died. Though the Family Court felt that there was an
attempt of the appellant to prolong the matter and to protract the trial, the
Court adjourned the matter for further cross-examination of the respondent for June 5, 1993. But in the order it was made clear
that if the appellant fails to appear, necessary orders would be passed and
further evidence would be recorded. On June 5, 1993 the appellant did not appear in the
Court and the Family Court passed an order closing the cross-examination of the
respondent. Thereafter, he recorded the statement of Nirvan Shah, the younger
son of both the parties, and also passed orders on the application submitted by
the respondent for summoning a witness from the Income Tax Office along with
the records. The matter was adjourned to June 9, 1993 on which date it was adjourned to June 14, 1993 in view of the letter that was
received from the Income Tax Office. On June 14, 1993, the necessary records produced
from the Income Tax Office were taken on record and the matter was adjourned to
June 18, 1993 on which date the Family Court
delivered the judgment allowing the divorce petition filed by the respondent
and passed the decree for dissolution of marriage on both the grounds, viz.,
cruelty and desertion. The appellant did not appear on any of the dates on
which the case was taken up by the Family Court from June 5, 1993 to June 18, 1993.
The
appellant filed an appeal against the said decree of the Family Court before
the Bombay High Court which has been dismissed by the High Court by the
impugned judgment dated August
17, 1995. The High
Court has taken note of the absence of the appellant before the Family Court on
June 4 and 5, 1993 and the subsequent dates on which the case was taken up by
the Family Court [11] its judgment on June 18, 1993 and found merit in the
submission urged on behalf of the respondent that the appellant allowed the
proceedings to go ex-parte against her by deliberately remaining absent and
also with a view to protecting the same. The High Court, taking note of the
stand of the appellant in the pleadings and her conduct in the proceedings, has
expressed the view that no useful purpose would be served in remanding the
proceedings to the Family Court and that way prolong the agonies of the
parties. Having regard to the stands adopted by both of the parties, the high
Court felt convinced that the position reached is of no return. The High Court
has, therefore, upheld the decree for divorce passed by the Family Court. Hence
this appeal.
The
appellant has argued the matter in person . She has submitted that on June 4, 1993 she suddenly fell ill e, she was
not in a position to attend the court and that she left the court after
requesting one advocate, Ms. Madhu Shetty, to submit the application for
adjournment on her behalf. The appellant has submitted that on June 4, 1993 she
got herself medically examined by Dr. (Mrs.) Premila A.Gandhi who advised her
to take complete rest for two weeks and that on June 5, 1993 she was absent as
she was not in a position to attend the Court and that on June 6, 1993 she went
to Goa from where she sent an application for adjournment to the Family Court
by speed post on June 8, 1993. The appellant has further submitted that along
with the said application she had enclosed a copy of the certificated issued by
Dr. (Mrs.) Premila A. Gandhi dated June 4, 1993 regarding her illness as well as
the prescription of Dr. (Mrs.) Premila A. Gandhi for her treatment. The case of
the appellant is that the envelope containing the application for adjournment
that was sent by the appellant to the judge, Family Court, was received at
Santa Cruz (East) Post Office and it was sent to the Bandra (East) Post Office
on June 10, 1993 and that the same was delivered at the Family Court much prior
to June 18, 1993 and that in spite of submission of the said application the
Family Court, without considering the said application, proceeded with the case
and decided the divorce petition filed by the respondent against the appellant ex-
parte without affording an opportunity to the appellant to contest the said
proceedings.
We
have perused the original record in connection with the application for
adjournment that is said to have been sent by the appellant from Goa on June 8, 1993.
The record does contain the application for adjournment but it does not
indicate the date on which it was received and the date when it was placed
before the Judge, Family Court for order. Even if we proceed on the basis that
the said application had been sent by post by the appellant from Goa on June 8, 1993,
the question still remains whether there was sufficient justification for the
failure on the part of the appellant not to appear before the Family Court on
June 4 and 5, 1993.
The
order dated June 4, 1993 passed by the Family Court on the application that was
submitted by the appellant for adjournment on June 4, 1993 records that the
appellant had come to the Court on June 4, 1993. This shows that on June 4, 1993 her condition was not such that she
was not in a position to move on that date. The application for adjournment
which was moved by the appellant on June 4, 1993 also does not seek adjournment on
the found of illness. In the said application adjournment was sought on the
ground of the death of a friend. Her suddenly falling ill subsequent to the
submission of the application for adjournment on June 4, 1993 is not borne out by the certificate issued by Dr. (Mrs.) Premila
A. Gandhi after examining the appellant on June 4, 1993. Moreover, the fact that the
appellant proceeded to Goa on June 6, 1993 also shows that she was in Bombay on June
5, 1993. There was,
therefore, no reason why the said certificate along with an application could
not be submitted before the Family Court on June 5, 1993. In the application for adjournment
that was sent by the appellant from Goa,
it is stated that "she haw been suffering from various ailments for the
last one year", and due to financial difficulty it has been impossible for
her to investigate the same. Moreover, the list of dates appended to the
special leave petition filed in this Court shows that the appellant was in Bombay on June 17, 1993, i.e., before the passing of the order dated June 18, 1993 by the Family Court. In her written
statement the appellant has stated that she had been doing honorary counselling
at the Legal Aid and Conciliation Cell at the old Administrative Building, Bandra, Talav which would indicate that the appellant is
familiar with the functioning of the legal proceedings in Family Court. It was,
therefore, expected that the appellant should have ascertained about further
proceeding in the case when she was absent. If she had made such an effort she
would have found out the orders that were passed during this period and she
could have moved the Family Court for appropriate orders by explaining the
circumstances ink which she could not be present in the Court on the various
dates and, if she had so moved, the Family Court, after considering the same,
should have passed appropriate orders. She did not choose to do so.
In the
circumstances, we are unable to uphold the contention of the appellant that the
Family Court was in error in proceedings with the case in the absence of the
appellant and in passing the order dated June 18, 1993 allowing the divorce petition filed
by the respondent. We do not find any reason to disagree with the view of the
High Court that the appellant allowed the proceedings to go ex- parte against
her before the Family Court by deliberately remaining absent with a view to
protract the said proceedings.
The
Family Court has awarded alimony at the rate of Rs. 1000/- per month to the
appellant. While the matter was pending before the High Court, the appellant
had approached this Court by filing Special Leave Petition No. 25859 of 1995
against the interim order passed by the High Court in the appeal. The said
special leave petition was disposed of by this Court by order dated January 15, 1996 whereby it was directed that the
appellant should be paid a sum of Rs. 4000/- per month in addition to the
alimony of Rs.1000/- per month. The appellant was being paid the said amount
during the pendency of the appeal in the High Court. As a result of the
impugned judgment of the High Court, the appellant will be entitled to alimony
at the rate of Rs.1000/- per month in future. Having regard to the facts and
circumstances of the case, we are of the view that the alimony payable to the
appellant by the respondent should be fixed at Rs.5000/- per month. As regards
the claim of the appellant in the joint properties, we have been informed that
the same is under consideration in matters pending before the Family Court.
The
said Court will deal with the same in accordance with law.
The
impugned judgment of the High Court is upheld with the modification that the
appellant will be entitled to payment of alimony at the rate of Rs.5000/- per
month. The appeal is disposed of accordingly. No costs.
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