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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETITION NO.968 OF 2011
Rajen @ Vipul Kantilal Mota ...Petitioner
Vs.
Mrs. Sheetal Rajen @ Vipul Mota ...Respondent
Mr. R.R. Salvi a/w. Ms. Ruchita Salvi, Advocates for the Petitioner
Mr. Ashwin Singh i/b. Ms. Yashashree Sutrale, Advocates for
the Respondent ig CORAM : SMT. ROSHAN DALVI, J.
DATED : 8TH JULY, 2011
ORDER :
1. The Petitioner was the Respondent in the Petition filed by the
Respondent in the Family Court for divorce and maintenance. The
Petition was filed in 2010 by the Respondent wife. The Respondent
has settled in Kuwait. The parties had at one time desired to settle
their dispute and obtain divorce by mutual consent. The settlement
failed. The husband was required to be represented by a new
Advocate. This took some time. The written statement was not filed
for more than 90 days after the Petition was served, though an
unaffirmed copy of the written statement was served upon the
Petitioner and shown to Court.
2. The learned Judge of the Family Court, Bandra, Mumbai refused to
extend time and rejected the purshis in that behalf. The order of the
learned Judge, which is impugned in this Petition dated 6th January
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2011 shows that since 90 days time is over, it cannot be extended
“for any reason”. Consequently, the learned Judge fixed the Petition
for hearing without the written statement of the Respondent.
3. The order of the learned Judge is too technical to be accepted
specially of a Family Court. The very spirit and ethos of the Family
Court is to see the dispute between the parties, to try to reconcile
them as far as possible, and to proceed on merits in which case all
the rigours of the C.P.C are not even applicable, though followed.
The Family Court is not even required to record the entire evidence
of the parties, but only a memorandum thereof. The Family Court is
entitled to rely upon documents as per the facts of the case even
without strict proof of the documents as required under the Evidence
Act. Within that spirit of the Family Court strict reliance upon Order
8 of the C.P.C is wholly misplaced.
4. Of course in a given case if the Writ Petition is unduly delayed
without any bona fide reason or if it is not filed to defeat and delay
the rights of the Petitioner or to prevent an order of the Court being
passed in favour of the Petitioner, the Court would be well within its
rights and powers to proceed without the written statement. Neither
party can by its own act adversely effect the rights of the other. No
Court would countenance such an act. However, if for bona fide
reasons and for a short period a written statement is not filed, the
decree passed by the Court without hearing both the parties on
merits would be liable to be challenged as it would be against the
spirit of the Family Court’s Act.
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5. The Petitioner’s Advocate has relied upon a case of Sau Vanita
Pravin Gaikwad Vs. Shri Pravin Pundlik Gaikwad A.I.R. 2010
Bombay 62 in which it is held that Order 8 Rule 1 would not strictly
apply to the proceeding under the Hindu Marriage Act.
6. Under the circumstances the delay of a few months, when in this
case the parties initially tried to settle their dispute, the husband was
to be represented by another Advocate and was settled in Kuwait
where the written statement was to be affirmed and served and
tendered an unaffirmed written statement to Court, must be
condoned.
7. In fact in this case the bona fides of the husband is seen by virtue of
the un-affirmed copy of the affidavit tendered to Court and earlier
sent to the other side showing the case of the husband on merits.
8. The Family Courts would do well to put merits before the
technicalities so that the Petitions can be disposed off on merits
once and for all.
9. Since it is seen that even earlier such orders have been passed by
Family Courts, a copy of this order shall be sent by the Registrar
General of this Court to all the Judges in Family Courts of
Maharashtra as also the other Civil Judges who take up Family Court
matters.
10.By now the written statement of the Petitioner herein is already
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affirmed. It shall be accepted by the learned Judge. The learned
Judge shall proceed on merits in accordance with the spirit of Family
Law.
11.The Writ Petition is disposed off accordingly.
(SMT. ROSHAN DALVI, J.)
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