Smt. D. Kasturi Devi vs D. Kalikeshwar Rao

R.G. Vaidyanatha, J.—This is an appeal filed by the appellant against the order dated 7th March, 1991 in Marriage Petition No. 64 of 1990 on the file of the Joint Civil Judge, Senior Division, Thane. Heard the learned Counsel for the appellant. The respondent has not appeared before the Court inspite of service of notice.

The respondent-husband filed the Marriage Petition in the Trial Court for divorce u/s 13(1A) of the Hindu Marriage Act. The appellant was served with notice and she engaged an Advocate but no written statement was filed. Then subsequently, the learned Trial Court allowed the petition on the basis of affidavit filed by the respondent and granted a decree for divorce. After coming to know of that order, the wife has come up with the present appeal.

It has also been brought to my notice that the wife, who is residing in the State of West Bengal, had moved the Supreme Court for transfer her case from Thane Court to West Bengal in Transfer Petition (Civil) No. 106 of 1991. It appears, the Supreme Court even granted the stay of the proceedings in the Trial Court by order dated 14th March, 1991. In the meanwhile, we find that the Trial Court had allowed the petition ex parte on 7th March, 1991. Since the appellant had taken steps for getting the transfer of her case to West Bengal by approaching the Supreme Court and was corresponding with her Advocate to take adjournment, she could not possibly file her written statement contesting the proceedings. As soon as she came to know of the impugned order she has come up with this appeal. In my view, there are bona fides in the version of appellant. She could not possibly contest the proceedings in the Trial Court. She is a resident of West Bengal and could not appear at Thane Court frequently and that is why, she had even moved the Supreme Court for transfer of the case. In the circumstances, the ex-parte decree which has been passed, is liable to be set aside. The appellant should be given an opportunity to file her written statement and contest the proceedings. Since I am remanding the matter only on the ground that the appellant should have an opportunity to contest the case, I do not want to express any opinion on the merits of the case.

In the result, the appeal is allowed. The impugned order dated 7th March, 1991 in Marriage Petition No. 64 of 1990 is hereby set aside and the case is remanded to the Trial Court for giving an opportunity to the appellant to the file written statement and then to dispose of the case on merits according to law, after recording evidence that may be adduced by both the parties. In the circumstances of the case, there will be no order as to costs.

Certified copy expedited.