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Sou. Puja Prakash Patil vs Shri. Prakash Vasantrao Patil on 14 December, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.110 OF 2015
ALONG WITH
CIVIL APPLICATION NO.203 OF 2015

Sou. Puja Prakash Patil
Age – 40 yrs., Occ: Housework
R/o.279/24, First Floor (Mala),
Chile Colony, Neharu Nagar,
Near Isolation Hospital,
Tal-Karveer, Dist-Kolhapur ] … Appellant / Applicant

Versus

Shri Prakash Vasantrao Patil
Age – 45 yrs., Occ : Service,
R/o.279/24, First Floor (Mala),
Chile Colony, Neharu Nagar,
Near Isolation Hospital,
Tal-Karveer, Dist-Kolhapur ] … Respondent

Mr. Sandeep S. Koregave for Appellant / Applicant.
Mr. Anand S. Patil a/w Ms. Sukanya Kolhe for Respondent.

CORAM :- SMT. VASANTI A. NAIK
SARANG V. KOTWAL, JJ.
DATE :- 14 DECEMBER, 2017

JUDGMENT (PER : SARANG V. KOTWAL, J.) :

Admit. By consent of the counsel for both the parties, the
appeal is heard finally.

The present appeal is preferred by the appellant Puja Patil who

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was the original respondent in Petition No.A-255 of 2013 before the Family
Court, Kolhapur, at Kolhapur challenging the judgment and order passed on
19/03/2015 by the said Court. By the said impugned judgment and decree,
the petition for divorce filed by the respondent – husband on the ground of
cruelty was allowed. The appellant herein had initially appeared through
her Advocate in the said petition. However, thereafter she failed to file her
written say and the petition proceeded and was decided in those
circumstances.

The respondent had filed the said Petition No.A-255 of 2013
before the Family Court at Kolhapur with the pleadings that their marriage
had taken place on 29/07/1997 at Chikodi, Taluka Chikodi, District
Belgaum as per Hindu rites. After the marriage, the couple started residing
together at Kolhapur. After about two years, the appellant started
harassing his parents. It is the case of the respondent that the appellant
herself was not willing to cohabit with him and was demanding divorce
from him and on her own accord, left his house. With the intervention of
the committee of District Legal Aid Authority, some attempts were made to
patch up the relations between them. However again since about 2006, the
appellant started ill-treating the respondent’s parents. It was the
respondent’s case that the appellant used to raise quarrels in public and was
mentally harassing him and his parents. The appellant started residing
alone in the respondent’s house separately on the first floor and the
situation continued for about 6 to 7 years. The respondent was denied of
his conjugal rights. According to the respondent, the appellant was causing
mental cruelty and therefore on that ground, in those circumstances, he
filed the aforementioned petition before the Family Court.

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The appellant appeared through her Advocate but did not file
the written say and therefore the evidence led by the respondent in the
form of his affidavit at Exh.25 along with other documents remained
unchallenged and ultimately the decree of divorce came to be passed and
the marriage was dissolved on the ground of cruelty by the judgment and
decree dated 19/03/2015 passed by the learned Judge of the Family Court
at Kolhapur.

The appellant has challenged the said judgment and decree
dated 19/03/2015 by way of the present appeal. Along with the present
appeal, the appellant has preferred Civil Application No.203 of 2015 for
stay of the implementation, operation and execution of the said judgment
and decree pending decision of the appeal. In this Civil Application, the
appellant has offered some explanation as to why she did not attend the
proceedings before the Family Court at Kolhapur. According to the
appellant, after filing of the petition, the respondent started talking very
sweetly with her and it was also represented to her that he would withdraw
his divorce petition and that they would live happily together. Led by such
representation, the appellant did not take further steps and did not remain
present before the Court. It is the case of the appellant that she came to
know about the decree having been passed only on 05/05/2015 and
thereafter she took steps to prefer the present appeal and the Civil
Application.

We have heard Mr. Sandeep S. Koregave, learned Counsel for
the Appellant / Applicant and Mr. Anand S. Patil, learned Counsel for the
Respondent.

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Mr. Koregave submitted that it is only because of the
misrepresentation and sweet talks of the respondent, the appellant did not
remain present before the Family Court and did not defend the petition
filed by the respondent. He submitted that it was, in fact, the respondent
who had treated her with cruelty because she could not conceive in all
these years.

Following points arise for our determination and we record our
findings thereon as under ;

POINTS FINDINGS
1. Whether the Judgment and Decree – Yes
impugned in this Appeal needs to be set
aside and whether the Petition No.A-
255/2013 is liable to be remanded back to
the Family Court, Kolhapur?

2. What order? – As per final order

In the proceedings before the Family Court at Kolhapur, the
appellant had in fact filed her appearance through her advocate. Hence, it
is clear that she had every intention to participate in the proceedings. But
she did not file her written statement and take further part in the
proceedings. Therefore we find force in the submissions made by the
learned counsel for the appellant that the appellant was misled by the
respondent on the representation that he would not pursue the Divorce
Petition and they would live together. In our opinion, in this circumstance,
if the appellant did not participate in the proceedings, no fault can be found

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with the appellant, so as to deprive her a reasonable opportunity to
participate in the proceedings and oppose the prayers in the petition. The
learned counsel for the respondent fairly submitted that the respondent had
no objection for pursuing the petition before the Family Court on merits.
Looking at the nature of allegations made against the appellant, in the
petition before the Family Court, the appellant deserves a fair opportunity
to defend her case. Therefore in our opinion, this is a fit case in which, in
the interest of justice, the matter needs to be remanded back to the Family
Court for the decision on merits of the case. Hence, the following order :

ORDER

(i) The judgment and decree dated 19/03/2015 passed by
the learned Judge, Family Court at Kolhapur in Petition
No.A-255 of 2013 is set aside.

(ii) The Petition No.A-255 of 2013 is restored on the file of
the Family Court at Kolhapur. The said petition shall be
decided in accordance with law.

In view of disposal of the appeal, Civil Application does not
survive and the same is accordingly disposed of.

(SARANG V. KOTWAL, J.) (SMT. VASANTI A. NAIK, J.)

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