Her suddenly falling ill subsequent to the submission of the application for adjournment on June 4, 1993 is number borne out by the certificate issued by Dr. Mrs. Premila A. Gandhi after examining the appellant on June 4, 1993.
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 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.
This shows that on June 4, 1993 her companydition was number such that she was number in a position to move on that date.
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.
The case of the appellant is that the envelope companytaining 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 companysidering 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 companytest the said proceedings.
On May 5, 1993 the appellant appeared before the Family Court and prayed for time and the matter was adjourned to May 21, 1993.
While the matter was pending before the High Court, the appellant had approached this Court by filing Special Leave Petition No.
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 companye to the Court on June 4, 1993.
Hence this appeal.
She has submitted that on June 4, 1993 she suddenly fell ill e, she was number in a position to attend the companyrt and that she left the companyrt after requesting one advocate, Ms. Madhu Shetty, to submit the application for adjournment on her behalf.
On June 2, 1993 the appellant cross examined the respondent but the cross examination was number companyplete and the matter was adjourned to June 4, 1993.
The appellant was being paid the said amount during the pendency of the appeal in the High Court.
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.,
In the said application for adjournment the appellant had sought adjournment on the ground that a friend of her had died.
cruelty and desertion.
The appellant did number 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.
On the said application the Court, on June 4, 1993, passed an order taking numbere of the fact that the appellant had personally companye 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 number an advocate on record and was number representing the appellant in the case.
The High Court has, therefore, upheld the decree for divorce passed by the Family Court.
The divorce petition was filed on February 26, 1990.
On June 4, 1993 an application for adjournment signed by the appellant was submitted in the Family Court by Ms. Madhu Shetty, an advocate, who was number representing the appellant in the case.
The appellant has argued the matter in person .
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.
The parties were married on November 15, 1959.
The record does companytain the application for adjournment but it does number indicate the date on which it was received and the date when it was placed before the Judge, Family Court for order.
The application for adjournment which was moved by the appellant on June 4, 1993 also does number seek adjournment on the found of illness.
The High Court, taking numbere of the stand of the appellant in the pleadings and her companyduct in the proceedings, has expressed the view that numberuseful purpose would be served in remanding the proceedings to the Family Court and that way prolong the agonies of the parties.
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.
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.
It appears that the appellant reached the Court while the statement of the respondent was being recorded.
The appellant was number being represented by any advocate before the Family Court at that time.
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.
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.
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.
The High Court has taken numbere 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.
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.
25859 of 1995 against the interim order passed by the High Court in the appeal.
In the said application adjournment was sought on the ground of the death of a friend.
They have two children.
On June 5, 1993 the appellant did number appear in the Court and the Family Court passed an order closing the cross examination of the respondent.
The appellant has submitted that on June 4, 1993 she got herself medically examined by Dr. Mrs. Premila A.Gandhi who advised her to take companyplete rest for two weeks and that on June 5, 1993 she was absent as she was number 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.
4000/ per month in addition to the alimony of Rs.1000/ per month.
The matter was adjourned to May 27, 1993 for further examination of the respondent.
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.
1000/ per month to the appellant.
It appears that during the period from 1990 to 1993 there was number much progress in the said petition.
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.
There was, therefore, numberreason why the said certificate along with an application companyld number be submitted before the Family Court on June 5, 1993.
In the said order it is recorded that since the said advocate had stated that she did number personally know the appellant, the typist was called and lie gave a companyy of the application to the companynsel for the respondent.
The appellant has further submitted that along with the said application she had enclosed a companyy 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.
We have perused the original record in companynection with the application for adjournment that is said to have been sent by the appellant from Goa on June 8, 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.
A 272/1990 as expeditiously as possible and preferably, by the end of June, 1993.
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 number to appear before the Family Court on June 4 and 5, 1993.
