Divorce Cannot Be Granted Merely Because One Party Remains Absent; Trial Court Must Independently Assess Evidence Even In Ex Parte Proceedings: Bombay High Court
Isabella Mariam
The High Court of Bombay, Division Bench of Justice Revati Mohite Dere and Justice Sandesh D. Patil set aside a decree of divorce granted by the Family Court at Thane and remanded the case for a fresh trial. The Court held that a decree of divorce cannot be passed merely because one of the parties remains absent or fails to file a written statement, and stated that even in ex parte proceedings, the trial court must independently assess the petitioner’s evidence and record findings based on the merits before dissolving a marriage. The Bench permitted the wife to file her written statement within one month and directed the Family Court to reframe issues, take evidence from both sides, and decide the case within nine months.
The case arose from a petition filed by the husband before the Family Court at Thane under Section 27(1)(d) of the Special Marriage Act, 1954, seeking dissolution of his marriage with the wife on the ground of cruelty. The marriage between the parties had been solemnized on 18 September 2017 under the provisions of the Special Marriage Act at the office of the Registrar of Marriages in Bandra, Mumbai. In his petition, the husband alleged that the wife had subjected him to acts of cruelty and detailed various instances to support his claim.
The wife appeared before the Family Court but did not file her written statement within the prescribed time. Consequently, an order was passed to proceed without her written statement. She later remained absent from the proceedings and did not lead any evidence. Her right to argue the matter was subsequently forfeited. The husband’s evidence went unchallenged as the wife did not cross-examine him.
During the hearing, the husband’s counsel relied on several judicial precedents to support the claim of cruelty in marriage. The Family Court proceeded to decide the case in the absence of the wife, framing an issue on whether she had treated the husband with cruelty after marriage. The matter before the High Court arose from the wife’s challenge to the Family Court’s decision, with her counsel contending that the lower court had failed to properly evaluate the evidence and had granted relief solely due to her absence.
The court recorded that although the Family Court reproduced the husband’s pleadings in detail, “the Trial Court surprisingly has not given any reasons as to how it has reached the said conclusion.” It noted that the Family Court disposed of the cruelty issue “hurriedly in a casual manner.”
The Bench observed that the only basis on which the Family Court accepted the husband’s case was that “the testimony of the husband had gone unchallenged.” The judgment recorded that the Trial Court “without discussing the case of the respondent-husband and without giving any reasons… decreed the petition on the premise that the appellant-wife remained absent.”
The High Court stated that the Trial Court was “oblivious of the legal position that merely because the proceeding has been ordered to be decided ex parte, does not mean that the proceeding has to be decreed automatically.” It further recorded that even when there is no written statement, “the contentions of the plaintiff/petitioner cannot be considered as gospel truth and it has to be analysed independently on merits.”
Referring to Balraj Taneja v. Sunil Madan, the court stated that a trial court must examine the petitioner’s case on merits even if no written statement is filed. It further cited Ramesh Chand v. Anil Panjwani, recording that the Apex Court held that even in ex parte cases the trial court should scrutinise pleadings, consider evidence adduced, and determine points for decision.
The Bench noted that none of the authorities cited by the respondent-husband applied to the present facts. Regarding the Trial Court’s handling of the matter, it observed, “the Trial court has disposed of the case in hand in a casual and mechanical manner.” It added that there were “no reasons of whatever nature assigned while decreeing the said proceeding.”
Addressing the remarriage, the court stated that once it found the Trial Court’s judgment perverse and contrary to law, “the fact that the respondent-husband has remarried would not deter us from quashing and setting aside the judgment.”
The High Court recorded: “The judgment, decree and order dated 05/11/2024 passed by the learned Judge, Family Court, Thane in proceeding bearing number P.A. No. 132/2022 is hereby quashed and set aside and the proceeding bearing number P.A. No. 132/2022 is restored back to its original file. The appellant-wife, who is respondent in the proceedings before the Family Court, is allowed to file her written statement within a period of 30 days from the date of uploading of this order.”
“The learned Judge, Family Court, Thane shall thereafter proceed to frame issues and take evidence of both the parties. Both parties will have the opportunity of cross-examining their respective witnesses.”
“We direct the learned Judge, to decide the case as expeditiously as possible, and in any event, within a period of nine months from the date of receipt of this order. There shall be no order as to the cost.”
Advocates Representing the Parties
For the Appellant: Ms. Priyanka Desai with Ms. Tvisha Desai & Ms. Janhavi Pise, instructed by The Fort Circle Advocates & Solicitors.
For the Respondent: Ms. Pushpa Verma with Mr. Moiez Shaikh.
Case Title: X vs Y
Neutral Citation: 2025:BHC-AS:45841-DB
Case Number: Family Court Appeal No. 101 of 2025
Bench: Justice Revati Mohite Dere and Justice Sandesh D. Patil
