LexUSHA UDAY KHIWANSARA versus UDAY KUMAR JETHAMAL KHIWANSARA
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
B
C
D
E
F
G
H
1112
SUPREME COURT REPORTS
[2018] 7 S.C.R.
USHA UDAY KHIWANSARA
v.
UDAY KUMAR JETHAMAL KHIWANSARA
(Civil Appeal No. 6861 of 2018)
JULY 17, 2018
[ABHAY MANOHAR SAPRE AND
UDAY UMESH LALIT, JJ.]
Matrimonial laws: Dissolution of marriage – In exercise of
power u/Art.142 of the Constitution – On facts, grant of ex parte
divorce decree in favour of husband by the High Court – Challenge
to, by the wife – On appeal, held: Parties have been living separately
for last more than a decade and there is no chance of both coming
together to continue their marital life, and no issue was born out of
wedlock – Furthermore, wife has been ailing for long time and living
with her relatives, and has no independent income of her own,
whereas her husband is quite resourceful person – In order to ensure
that the parties may live peacefully in future, a quietus must be
given to all litigations between the parties – In view of the consensus
arrived at between the parties, issuance of direction to the husband
to pay the wife Rupees thirty lakhs towards permanent alimony and
Rupees five lakhs towards medical expenses – Thus, in exercise of
power u/Art. 142, marriage is dissolved subject to the fulfillment of
the said conditions – Hindu Marriage Act, 1955 – Constitution of
India – Art. 142.
Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 :
[2006] 3 SCR 53 ; Sanghamitra Ghosh v. Kajal Kumar
Ghosh (2007) 2 SCC 220 : [2006] 9 Suppl. SCR 156 –
referred to.
Case Law Reference
[2006] 3 SCR 53
referred to
Para 13
[2006] 9 Suppl. SCR 156 referred to
Para 14
[2018] 7 S.C.R. 1112
1112
A
B
C
D
E
F
G
H
1113
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6861
of 2018.
From the Judgment and Order dated 14.08.2014 of the High Court
of Judicature at Bombay in Family Court Appeal No. 155 of 2007.
Ms. Anagha S. Desai, Satyajit A. Desai, Varun Mathur, Advs. for
the Appellant.
Ms. Meenakshi Arora, Sr. Adv., Jay Kishor Singh, Anand Landge,
Kaushik Kulkarni, Advs. for the Respondent.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. 1. Delay condoned.
2. Leave granted.
3. This appeal is filed by the appellant-wife against the final
judgment and order dated 14.08.2014 passed by the High Court of
Judicature at Bombay in Family Court Appeal No.155/2007 whereby
the High Court allowed the Family Court Appeal filed by the Respondent-
husband.
4. Few facts need to be mentioned to appreciate the short issue
involved in the appeal.
5. The appellant is the wife whereas the respondent is the husband.
The appellant and the respondent married on 07.02.1992. Unfortunately,
due to various reasons, their married life was not cordial which eventually
led to filing of divorce petition (486 of 2004) by the respondent (husband)
in the year 2004 against the appellant (wife) in Pune Family Court.
6. The respondent sought divorce inter alia on the ground of
cruelty and desertion against the appellant. The appellant denied the
allegations of cruelty/desertion and contested the petition by joining issues.
7. By order dated 19.06.2007, the learned Family Judge dismissed
the respondent’s divorce petition. He held that respondent failed to make
out any case of cruelty and desertion on the part of the appellant so as to
entitle him to claim a decree of divorce.
8. The respondent felt aggrieved, filed first appeal (155/2007)
before the High Court at Mumbai. By impugned order, the High Court
USHA UDAY KHIWANSARA v. UDAY KUMAR
JETHAMAL KHIWANSARA
A
B
C
D
E
F
G
H
1114
SUPREME COURT REPORTS
[2018] 7 S.C.R.
allowed the respondent’s appeal and set aside the order of the Family
Judge and in consequence allowed the respondent’s divorce petition by
granting a decree of divorce in his favour on the ground of desertion. It
is against this order of the High Court; the wife (appellant herein) felt
aggrieved and filed the present special leave to appeal in this Court.
9. We have heard the learned counsel for the parties and perused
the record of the case.
10. It is not in dispute that the High Court had allowed respondent’s
(husband’s) appeal and passed the impugned order granting a decree of
divorce without hearing the appellant (wife). In other words, none
appeared for the wife before the High Court in the appeal, which was,
heard ex-parte. Such hearing of the appeal, which eventually resulted in
passing an adverse order against the wife and dissolving the marriage
undoubtedly caused prejudice to the rights of the appellant-wife.
11.Since the appellant wife thusExcerpt shown. Read the full judgment & AI analysis in Lexace.