Case Note & Summary
The appeal arose from a matrimonial dispute where the husband filed O.P.No.49 of 2004 before the Principal Judge, Family Court-cum-IV Additional District & Sessions Judge, Vijayawada, seeking dissolution of marriage under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 on the ground of desertion. The marriage between the parties took place on 22.09.1990 after the death of the husband's first wife, who was the elder sister of the respondent. The husband alleged that on 26.05.2001, the respondent left the matrimonial home at Vallabhapuram village along with their minor child Kavitha and went to her parental home at Madras without informing him, and thereafter deserted him without reasonable cause. He issued a legal notice Ex.A1 dated 23.07.2003, but she did not return. The respondent denied desertion and stated that on 24.05.2003, her parents came to Vijayawada and the petitioner himself sent her with them for a short stay, assuring he would come and take her back. She further claimed that she replied to the legal notice on 22.08.2003 expressing willingness to join him at Vijayawada, and that the petition was filed only to pressurise her regarding custody of the child. The Family Court, by order dated 20.07.2007, dismissed the husband's petition, holding that he failed to prove desertion and did not take steps for conciliation, mediation or restitution of conjugal rights. In the present appeal under Section 19 of the Family Courts Act, 1984, the respondent did not appear despite notice, and the appeal was heard ex parte. The appellant argued that the Family Court erred, that desertion was proved, and that the respondent's absence should lead to automatic allowance of the appeal. The High Court examined Order XLI Rule 17(2) CPC and held that ex parte hearing does not mean automatic acceptance of the appellant's case; the court must consider the matter on merits. On merits, the Court noted the relationship and the fact that the respondent had expressed willingness to join the husband in her reply and counter. The husband admitted in cross-examination that he was not interested in leading matrimonial life. The Court observed that the husband's conduct negatived the allegation of desertion. The extracted text ends before the final operative order, so the final decision is not available; however, the Court's reasoning clearly indicated that the Family Court's dismissal was sustainable and that the appeal was not liable to be allowed solely due to respondent's absence.
Headnote
A) Family Law - Appeal Procedure - Ex Parte Hearing - Family Courts Act, 1984 Sections 19, 20; Code of Civil Procedure, 1908 Order XLI Rule 17(2) - The High Court considered whether absence of respondent in appeal automatically entitles appellant to decree. Held that under Order XLI Rule 17(2) CPC, appellant may be heard ex parte, but appeal cannot be allowed solely on respondent's absence; court must examine merits and appellant must demonstrate sufficient cause for reversal. Ex parte hearing does not mean automatic acceptance of the case of the party before the court. (Paras 10-10) B) Family Law - Desertion - Divorce - Hindu Marriage Act, 1955 Section 13(1)(ia)(ib) - Husband sought dissolution alleging wife deserted matrimonial home on 26.05.2001. Family Court dismissed petition as husband failed to prove desertion and did not take steps for conciliation, mediation or restitution. High Court analysed evidence including Ex.A1 legal notice, respondent's reply/counter expressing willingness to join, and husband's cross-examination admission that he was not interested in leading matrimonial life. Held that such conduct negatived desertion and Family Court's dismissal was sustainable. (Paras 11-14) C) Family Law - Desertion - Intention to Desert - Hindu Marriage Act, 1955 Section 13(1)(ib) - The Court examined respondent's assertion that she was sent by husband to parental home and her willingness to return, along with husband's disinterest in cohabitation. Held that petitioner failed to establish animus deserendi; mere absence without consent followed by legal notice insufficient proof of desertion when spouse expresses willingness to return. (Paras 12-14)
Issue of Consideration
Whether the Family Court's order dated 20.07.2007 dismissing O.P.No.49 of 2004 was sustainable in law and on facts; whether absence of respondent in appeal under Section 19 of Family Courts Act entitles appellant to automatic allowance; whether appellant proved desertion under Section 13(1)(ib) of Hindu Marriage Act, 1955.
Final Decision
Not mentioned in the extracted text; the judgment text ends before the final operative order, though the Court's analysis suggested the Family Court's dismissal was sustainable and the appeal was not liable to be allowed solely due to the respondent's absence.
Law Points
- An appeal under Section 19 of the Family Courts Act
- 1984 cannot be allowed merely because the respondent did not contest
- ex parte hearing under Order XLI Rule 17(2) CPC requires the appellant to demonstrate sufficient cause and the court must examine the matter on merits
- desertion under Section 13(1)(ib) of the Hindu Marriage Act
- 1955 must be proved by the petitioner with clear evidence of animus deserendi
- mere absence from matrimonial home followed by legal notice does not amount to desertion if the spouse expresses willingness to return
- provisions of CPC apply to Family Courts Act proceedings unless repugnant
- with Family Courts Act prevailing under Section 20.
