The Bombay High Court in its order dated October 12, 2022 rejected an appeal filed by a woman against the divorce decree granted by Family Court owing to her non-appearance.
The High Court remarked that a woman who filed three criminal cases against her husband would be fully aware of the legal procedure.
Case:
Parties got married in May 1986 and have three children. According to the husband, wife left her matrimonial home in 2003 and the family court granted him divorce in 2007, after she failed to turn up for hearings.
Subsequently, wife challenged the divorce decree citing her ignorance on the grounds of being an ‘illiterate woman’.
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Allegations by Husband
According to the Respondent-Husband, the Appellant-wife’s behaviour changed after sometime of marriage, and quarrels arose between the parties. In 2006, the husband filed for divorce on the grounds of mental cruelty.
The husband alleged that his wife had illicit affair with one person who was joined as a respondent in the petition. The husband also alleged that the wife used to abuse and humiliate him and ultimately, in 2003, she left the matrimonial home.
It was alleged that the wife never took care of the children and used to steal money from the husband and give it to her paramour.
In June 2007, summons was served on the Appellant which was returned with the endorsement “refused“. The learned Family Court Judge noted that a case was made out for divorce and, accordingly, on December 17, 2007, the decree of divorce was granted.
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Defense by Wife
In 2008, the wife filed Civil Misc. Application for setting aside the divorce decree. It was stated that the Appellant wife, an illiterate lady, was not aware of the legal procedure, and upon legal advice, she did not remain present. Thus, she argued that this is a case where the decree of divorce should be set aside, and the Appellant should be given an opportunity.
The learned Family Court Judge, by a detailed order dated November 13, 2008, after examining the evidence, as dismissed her application. The wife then appeal in the high court.
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Bombay High Court
A division bench of Justices Nitin Jamdar and Sharmila Deshmukh rejected the wife’s claim that she was illiterate and a victim of wrong legal advice, moreover that it was the court’s duty to secure her presence.
Adding that the family court passed the ex-parte decree after the wife refused to accept several court summons, the high court bench observed,
The Appellant had knowledge of the legal procedure, having filed three criminal cases.
The court also added,
In the present case, the Appellant – wife chose not to remain present despite summons having been served, and the Appellant thereafter cannot be heard to argue that it was the duty of the Family Court to force her to remain present.
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Wife did not turn up at court for 6-months
Citing her non-presence at the family court after repeated summons, the high court noted,
After waiting for almost six months, the family Court had no option but to proceed further and grant the decree of divorce. We do not find any error in the view taken by the learned Family Court Judge.
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Cases Filed by ‘Illiterate’ Wife
The bench noted that the wife who claimed to be an illiterate woman had filed:
- Petition for restitution of conjugal rights on 11 December 2006
- Application for maintenance
- Another criminal case in the same Court under section 498A, 506 Part-II read with section 34 of the Indian Penal Code
However, when the Family Court issued numerous summons to her between June 2007 to December 2007, she did not attend on even a single date and her husband’s petition was thus allowed.
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Wife Living In Adultery, Contesting Divorce
The husband appearing in person informed the court that his ex-wife had been living with her paramour in Gujarat and was only pursuing the present proceedings against him to harass him. To this, the bench said
Considering the totality of the circumstances, we do not find that there is any case made out to set aside the impugned order. The Appeal is, therefore, dismissed.
In its order the Family Court Judge also noted that the husband had remarried, and no case for fraud is made out against him.
Lastly, the High Court concluded,
Regarding arrears pursuant to the interim order, it is open to the Appellant’s wife to take appropriate proceedings in that regard, and the dismissal of appeal will not come in the way of the Appellant
READ ORDER | Woman Who Filed 3 Criminal Cases Against Husband Cannot Claim Illiteracy: Bombay HC Refuses To Reverse Divorce
— Voice For Men India (@voiceformenind) November 11, 2022
▪️Wife leaves 2003
▪️Files RCR, Maintenance; 498A, 506
▪️FC grants divorce 2007
▪️Wife living with paramour, contesting since 2008https://t.co/uRYTfNArgp
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