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PETITIONER: ADHYAATMAM BHAAMINI

       Vs.

RESPONDENT: JAGDISH AMBALAL SHAH

DATE OF JUDGMENT:       05/02/1997

BENCH: S.C. AGRAWAL, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      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

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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

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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

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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.