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A divorce decree has been set aside by the Bombay High Court which has granted by a family court eight years ago to a man who had claimed that his Australian wife had deserted him in 1991.

The court opined that the consequences of a decree of divorce had far-reaching effects on the marital status of the parties and hence adequate opportunity of hearing was required to be given to the wife who claimed that she was not heard.

“At the same time, care has to be taken that no party deliberately delays hearing of proceedings or intentionally avoids participation in the proceedings before Family Court,” mentioned by the Justices Naresh Patil and A R Joshi in a recent order.

“We are therefore of the view that though the appeal (of wife against divorce) is pending since 2005 and that substantial valuable time is lost, the same could be remedied by directing the Family Court to dispose of the petition after hearing the parties on its own merits, in accordance with law, within a stipulated time limit,” the bench noted.

Accordingly, the Judges directed the Family Court to dispose of the appeal within six months and directed the couple to remain present in the Family Court in the first week of March so that it can hear the matter afresh.

However, if the appellant-wife did not appear before the Family Court on two consecutive dates or failed to cooperate with the Family Court then that court would be entitled to decide the matter finally in accordance with law, the High Court bench ruled.

The Judges remarked, “we are of the view that an opportunity is required to be provided to the appellant (wife) to participate in the proceedings.”

“Though she had taken a stand that summons were not served on her personally but that grievance is not sustainable as she had engaged a counsel and she had personally appeared before the court. Thereafter she ought to have taken steps to participate in the proceedings,” they said.

The respondent-husband had filed a petition under Section 18 of the Foreign Marriage Act, 1969 read with Section 27(1)(b) of the Special Marriage Act, 1954 for a decree of divorce on the ground of desertion.

According to him, he got married to an Australian woman on November 11, 1988 and they decided to settle down permanently in Mumbai thereafter.

The husband contended that on March 12, 1988, he went to Tasmania via Melbourne to study at the Australian Marine Time College. During that period he met the appellant-wife. She was already married to someone else but promised to take a divorce and lead a life with him. She took divorce from her first husband on October 20, 1988 and married him.

However, after marriage the wife informed the husband that she had already undergone hysterectomy operation and therefore it could not be possible for her to have children.

The respondent felt cheated. They had decided to adopt a baby and ultimately to settle down in India. The wife was older to him by 12 years, the husband contended.

On December 20, 1990, they decided to return to India with a view to settle down permanently. The husband argued that his wife was guilty of deserting him since May 1991 for more than two years. Thereafter he filed for divorce and the Family Court issued summons to his wife to appear in the case.

The wife contended that summons was never served on her and that the packet containing summons and petition was given to the tenant residing in her flat. The packet was returned to the Consulate of India in Australia. On her instructions, her lawyer appeared in the Family Court.

In 2004, she came to India and assured the Court that she would not leave for Australia till the matter was decided. Later, she asked permission from the Court to leave for Australia as her ticket was to expire. The Family Court rejected her plea. Eventually, she left for Australia without taking permission.

The High Court observed, “From the record it emerges that the wife did not participate in the proceedings filed by the husband. She could have been more diligent in taking part in the proceedings before the Family Court. Inspite of an undertaking to the Court she had left India for Australia saying that her air ticket was to expire.”


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