Case Note & Summary
The petitioner husband filed a writ petition challenging two orders of the Family Court, Mumbai dated 5th January 2010 and 5th April 2010 in a divorce petition filed by the respondent wife. The first order rejected an adjournment application filed by the clerk of the husband's advocate and granted the wife's application for an order of 'no written statement'. The second order granted interim maintenance to the wife. The divorce petition was filed by the wife on 17th February 2009 and registered on 3rd March 2009. Service was effected on the husband on 26th March 2009. On the next hearing date of 18th April 2009, the husband remained absent. On 11th June 2009, the husband appeared and certain applications were taken out. On 30th July 2009, the husband again remained absent and the written statement was not filed. On 15th September 2009, a conciliation report was filed with both parties present. On 5th November 2009, the husband remained absent again. On 5th January 2010, the husband and his advocate were absent, and the clerk's application for adjournment was rejected. The Family Court granted the wife's application for 'no written statement' and later granted interim maintenance on 5th April 2010. The High Court held that the Family Court was justified in passing the orders as the husband had ample opportunities to file a written statement and appear, but failed to do so. The writ petition was dismissed with no order as to costs.
Headnote
A) Family Law - Divorce - No Written Statement - Order of no written statement passed when husband and his advocate remained absent on multiple dates - Held that the Family Court was justified in proceeding ex parte and ordering no written statement as the husband failed to file it within the prescribed time despite opportunities (Paras 1-10).
B) Family Law - Interim Maintenance - Section 24 of Hindu Marriage Act, 1955 - Grant of interim maintenance to wife - Held that the Family Court correctly granted interim maintenance based on the wife's application and the husband's absence did not warrant interference (Paras 4, 11-12).
Issue of Consideration
Whether the Family Court was justified in passing an order of 'no written statement' and granting interim maintenance in the absence of the husband and his advocate.
Final Decision
Writ Petition dismissed. No order as to costs.
Law Points
- Order of no written statement under CPC
- Interim maintenance under Section 24 of Hindu Marriage Act
- 1955
- Right to be heard
- Adjournment discretion
Case Details
2010 LawText (BOM) (10) 122
WRIT PETITION NO. 6077 OF 2010 IN FAMILY COURT PETITION NO.A 498 OF 2009
Mr. Mohan Pillai i/b. Smt. Madhavi M. Pillai for Petitioner, Mr. Vivek Kantawala with Ms. Sneha Nanandkar i/b. M/s. Vivek Kantawalla & Co., for Respondent
Sunayna Tarakad @ Sunayna Noushad Valappad
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Nature of Litigation
Writ petition challenging orders of Family Court in divorce proceedings
Remedy Sought
Quashing of orders dated 5th January 2010 and 5th April 2010 passed by Family Court, Mumbai
Filing Reason
Husband aggrieved by Family Court's order rejecting adjournment and granting 'no written statement' and interim maintenance
Previous Decisions
Family Court order dated 5th January 2010 rejecting adjournment and granting 'no written statement'; order dated 5th April 2010 granting interim maintenance
Issues
Whether the Family Court was justified in passing an order of 'no written statement' when the husband and his advocate were absent?
Whether the Family Court was justified in granting interim maintenance to the wife in the absence of the husband?
Submissions/Arguments
Petitioner husband argued that the orders were passed without giving him an opportunity to be heard.
Respondent wife supported the orders, contending that the husband had ample opportunities but remained absent.
Ratio Decidendi
The Family Court was justified in passing the order of 'no written statement' and granting interim maintenance as the husband had sufficient opportunities to appear and file his written statement but failed to do so, and the orders were passed in accordance with law.
Judgment Excerpts
The Petitioner husband has applied for quashing the orders of the Family Court, Mumbai dated 5th January 2010 and 5th April 2010 in the Divorce Petition.
The order dated 5th January 2010 rejects an application filed by the Clerk of the Advocate of the husband for adjournment.
It also grants the application of the Respondent wife who had applied for an order of 'no written statement' in her Petition for Divorce.
The order dated 5th April 2010 is for the grant of interim maintenance upon the application for maintenance taken out by the wife.
Procedural History
Divorce petition filed by wife on 17th February 2009, registered on 3rd March 2009. Service on husband on 26th March 2009. Multiple hearings with husband absent on several dates. On 5th January 2010, Family Court rejected adjournment and granted 'no written statement'. On 5th April 2010, Family Court granted interim maintenance. Husband filed writ petition on 20th October 2010.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC):
- Hindu Marriage Act, 1955: Section 24
