MRS. SHIPRA ADITYA JAIN (BEFORE MS. SHIPRA GOPALHARI UPADHAYA)versusMR. ADITYA JAYKUMAR JAIN

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION

              FAMILY COURT APPEAL NO. 55 OF 2024

Mrs. Shipra Aditya Jain
(Before Ms. Shipra Gopalhari
Upadhaya) Age: 32 Years,
Occupation: Service, R/o: F-102,
Devnandan Supremus, Near
Galaxy Township, Opp. RAF
Campus, Vastrapur, S.P. Ring
Road, Ahmedabad                    ..   Appellant
     Versus
Mr. Aditya Jaykumar Jain
Age: 31 Years, Occupation:
Service R/o. Flat No. B-3, Juhu
Airport Colony, Opp. Nanavati
Hospital, Vile Parle (W),
Mumbai 400 056                     ..   Respondent
                            …
Mr. Tushar Shinde (through V.C.) i/by Mr. Swapnil Telang, for
the Appellant.
Mr. M. K. Guha a/w MR. Avnendra Kumar and Mr. Rajnath Pal,
for the Respondent.
                            ...
                 CORAM: BHARATI DANGRE &
                         MANJUSHA DESHPANDE, JJ.

                   DATED : 31st JULY, 2026

Judgment [Per Manjusha Deshpande, J.]:-

1.     Rule. Rule made returnable forthwith and heard Cnally

with the consent of the parties.

2.     According to the Appellant, a short question is involved

in this Appeal, as to whether due to absence of the Appellant in
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the proceedings for divorce Cled by the Respondent-husband,

can the Family Court allow the Petition for divorce ex-parte

only on the basis of pleadings of the Respondent-husband.

Therefore, we decided to hear the Appeal Cnally, however,

when the matter was listed on 27.03.2026, we directed the

counsel for the Respondent to place on record the copy of

Petition No. A-1239 of 2019 alongwith the copy of evidence

afCdavit. Accordingly, he has placed on record the photocopy

of the Petition for divorce and the evidence in the form of

afCdavit of examination-in-chief produced by the Respondent.

3.     Mr. Tushar Shinde, learned counsel for the Appellant,

who appeared through V.C. submitted that, the learned Judge

of the Family Court has erred in granting decree of divorce

under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (for

short “the HMA Act”) on the ground of cruelty. It is submitted

that the Appellant had engaged Advocate to represent her in

the matter. Due to his inaction and default, the matter before

the Family Court, proceeded ex-parte, since she was advised

and assured that, her presence is not necessary. Since she

does not reside in Mumbai, she was unable to attend the dates

assigned by the Family Court.     As a result, she could not

oppose the prayer made by the Respondent, which has

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resulted in the impugned order, solely based on the averments

made by the Respondent, without hearing the Appellant which

is against the principles of natural justice.     She has been

deprived of opportunity to lead evidence and cross-examine

the witnesses of the Respondent. The Family Court should not

have passed a decree of divorce placing reliance on the

un-rebutted   evidence. Since the decree of the divorce was

prayed on the ground of cruelty, it was necessary for the

husband to prove cruelty as deCned under Section 13(1)(i-a)

of the HMA Act.

       The learned counsel drawing our attention to the

paragraph Nos. 27 and 28 of the impugned judgment would

submit that, there is no reasoned order passed by the Judge of

the Family Court, while granting the prayer of the Respondent-

husband. He submits that the N.C. report lodged in the police

station is the material relied by the learned Judge to hold that

the ground of cruelty is proved. According to him, this is the

only material pleaded by the Respondent, which is not proved.

It is thus prayed that the impugned judgment and order dated

08.02.2024, passed by the Family Court, Mumbai dissolving

the marriage between the parties is required to be quashed

and set aside.    The Appellant has relied on the following

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judgments:

      i)      Riya Suralkar Vs. Rahul Suralkar1

      ii) Mrs. Akella Lalitha                     Vs.     Sri     Konda
      Hanumantha Rao & Anr.2

      iii) Seema Manoj Pardesi Vs. Manoj Sitaram
      Pardesi3


4.      Learned counsel Mr. M. K. Guha, appearing for the

Respondent, opposed the submission of the Appellant. It is

submitted that the parties have been separated for more than

eight       years.   No     relationship        survives      between          them.

Therefore, there is no point in either setting aside the

judgment or remanding the case back to the Family Court. The

learned counsel would submit that, after the Petition was Cled

on 11.04.2019, before the Family Court at Bandra, Mumbai,

number of opportunities have been granted to the Appellant to

appear and oppose the Petition for divorce. He would submit

that in all 33 dates were assigned in the present case by the

Family Court. The Appellant was granted various chances to

Cle her Written statement; three chances were given for her

cross-examination           and      three      chances     to   conduct         the

examination in chief. The Rojanama would reKect that the

1 FCA No. 101 of 2025 (Decided on 01.10.2025)
2 2022 LiveLaw (SC) 638
3 FCA No. 39 of 2013 (Decided on 28.02.2013)
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number of chances were given to the Appellant to oppose the

Hindu Marriage Petition for divorce. It is submitted that the

Appellant was deliberately absent all throughout proceedings.

She was successful in dragging the litigation, which has

resulted in ex-parte order.

       It is submitted that, though the judgment has been

passed ex-parte, due to the absence of Appellant throughout

the proceedings, the impugned order is not passed purely on

the basis of averment made in the Petition, but the Respondent

has led evidence by submitting his own afCdavit-in-lieu of

examination in chief, alongwith the afCdavit of his mother

Mradula Jaykumar Jain and afCdavit of one Piyush Anil

Pandya, who is a close family friend of the Respondent, to

substantiate the allegations of cruelty at the hands of the

Appellant.   This evidence produced by the Respondent has

gone un-rebutted due to failure of the Appellant to cross-

examine the witnesses. Based on the aforementioned evidence,

the learned Judge has granted Decree of divorce on the ground

of cruelty. He therefore would submit that, there is no merit in

the Appeal Cled by the Appellant, which deserves to be

dismissed.

5.     We have heard the respective parties and also perused

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the compilation of documents produced by them.                  The

Respondent-husband has Celd petition for Divorce on the

ground of ‘cruelty’ as provided under Section 13(1)(i-a) of the

HMA Act, 1955. According to the Respondent-husband, the

conduct of the Appellant since the beginning of their marriage

was constantly causing embarrassment to him in the public

and even before his family members. The Appellant is a short

tempered lady. There are various instances which have been

narrated by him to demonstrate that the Appellant used to

insult him in public and had a callous approach towards him.

Inspite of best of efforts made by him, he was not able to bear

the stress and mental agony, due to the conduct of the

Appellant. She used to doubt that he was conducting an affair

behind her back. She distrusted his Cdelity and accused him of

bringing girls at home. On one occasion, she even assaulted

him for which he was required to be taken to the hospital for

Crst aid, which culminated in lodging complaint against the

appellant with Dindoshi Police Station, for physical assault

committed by the Appellant. He even alleged that the

Appellant has refused to establish any relationship with him

which amount to mental cruelty.

6.     In support of the aforementioned grounds raised in the

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memo of marriage petition, the Respondent has examined

himself at Exhibit-18, where the allegations of her rant and

callous behaviour has been stated on oath. It is alleged that

she often used bad words against him.               He has narrated

incident of her short tempered nature which has caused him

embarrassment in the public and in front of his family

members. He has stated about his reconciliation efforts made

by him which turned out to be futile, which has caused him

severe       depression.    He     had   planned    to    bring        about

reconciliation at Ahmedabad for which he booked a Kight so as

to meet her at ‘Gandhidham’, where their love affair had

started. In support of his claim, he has placed on record the

hotel       voucher   and   boarding     passes    from    Mumbai         to

Ahmadabad.

        The Respondent has also Cled on record the N.C.

complaint lodge by him on 27.12.2025 against the physical

assault by the Appellant-wife alongwith the medical papers.

He has made a categorical statement in the afCdavit that, the

wife used to refuse to establish any relation with him, and

whenever he made an attempt to resist her act of cruelty she

would threaten him of committing suicide or Cling false

complaint for demand of dowry. These are the few instances

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which have been stated by the Respondent husband in the

afCdavit of examination in chief.

7.     PW-2 Ms Mradula Jaykumar Jain, mother of the

Respondent has also Cled her afCdavit of examination-in-chief,

who has also narrated the instances of cruelty and

misbehavior of the Appellant which has caused great distress

to the Appellant and his family members. PW-3 Mr. Piyush Anil

Pandya, who is one of the close family friend of the

Respondent-husband has also narrated an incident of cruelty

which goes to show that the behaviour of the Appellant was

causing great mental cruelty to the Respondent right from the

day of Cxing of their marriage till their separation.           These

afCdavits are also supported with other evidence in the form of

prescriptions of the doctors. A complaint at Exhibit-33 dated

03.01.2016 Cled by the Respondent, against the threats given

by the Appellant for causing him physical and mental

harassment, quarreling over petty things and her threats to

put him and his family members behind the bars. It also refers

to an incident of assault by the Appellant on 27.12.2015,

attempting to break the head of the Respondent. Thus, the

allegations of cruelty are proved by the Respondent by leading

evidence.

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8.     Although the learned counsel for the Appellant has relied

on some judicial pronouncements, to contend the Divorce

decree cannot be granted ex-parte, in our view, the two

judgments in Mrs. Akella Lalitha and Seema Manoj Pardesi

(supra) are not applicable to the facts of the present case. So

far as the decision of this Court in Riya Suralkar (supra) is

concerned, this Court has taken a view that, trial Court cannot

automatically allow the Divorce proceedings on the basis of

pleadings of a party, by treating it as a gospel truth.            The

ground of ‘cruelty’ has to be independency assessed and

analyzed on the basis of merits by the trial Court.               These

observations, according to the Appellant, are squarely

applicable to the case in hand.        Though we are also in

agreement with the view taken by this Court in the said

judgment, however, the said judgment needs to be read down

completely, and not in piecemeal. This Court has held that

there has to be Cndings recorded with reasons and an

application of mind by the trial Court. It has to decide whether

the Appellant has proved his case, on the basis of pleadings

and evidence. In short, on the basis of the evidence led by the

party Cling the proceedings, the decree of divorce cannot be

passed mechanically, without appreciating evidence and a

supported    reasoned    order.   In   the   present     case,      the
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aforementioned judgment is not applicable for the reason that,

the Respondent has placed on record evidence in the form of

his own afCdavit and two other afCdavits of his mother and the

near acquaintance respectively, which demonstrate the mental

and physical cruelty meted out to the Respondent-husband.

The learned Judge has relied some instances as pleaded by the

Respondent which amounts to mental cruelty. In the judgment

while answering the issue whether the petitioner proves the

cruelty by the Respondent, the learned Judge of the Family

Court has observed that, the evidence of the two witnesses is

corroborating the version of the Respondent-husband about

the allegations of cruelty at the hands of the Appellant wife.

He has also relied on the N.C. report for physical assault Cled

by the Respondent against the Appellant-wife. The medical

papers for the injury caused by the wife are at Exhibit-31.

Some photographs of the assault with a bamboo stick at public

place are placed on record at Exhibit-32.

       When all this evidence is taken together, we do not Cnd

any inCrmity in the Cndings recorded by the learned Judge of

the Family Court about the alleged ‘cruelty’ by the Appellant-

wife. As we have already taken note of the roznama of the trial

Court which discloses that the appellant has remained absent

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inspite of being served. Though she had engaged an advocate

to conduct her matter on many occasions both of them have

remained absent by Cling adjournment applications.           On at

least Cve occasions adjournments have been granted to the

appellant for Cling her written statement.      Finally, on 6 th

August 2021, she has been granted adjournment to Cle her

written statement subject to depositing costs of Rs.100/-. Even

this chance has not been availed by the appellant. An

opportunity to place on record her evidence in the form of

AfCdavit in lieu of examination-in-chief has been granted to

the Appellant on three dates i.e. 17th June 2023, 11th August

2023 and 13th October 2023. Inspite of all these chances, she

has failed to lead any kind of evidence. She was also granted

three chances to cross-examine the Respondent-husband and

his witnesses, but that opportunity has also not been availed

by the appellant.

       On going through the roznama, it is apparent that the

appellant-wife has failed to pursue the litigation diligently

inspite of being aware about the orders passed by the Family

Court from time to time. She has failed to lead evidence and

oppose the petition for divorce. Consequently, the Family Court

was constrained to pass a decree of divorce, relying on the

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                       evidence    produced   by    the    Respondent-husband        which

                       unerringly points towards the ‘cruelty’ of the Appellant wife,

                       hence the learned Judge has allowed the petition. We do not

                       Cnd any ground for causing interference in the order made by

                       the Appellant, since the order is based not only on the

                       pleading of the Respondent husband but also corroborative

                       evidence at Exhibits- 29 to 33 produced by him to support his

                       allegations of cruelty against the Appellant wife.

                              Based on the pleadings and the evidence produced by the

                       Respondent-husband, a well-reasoned order is passed, which

                       does not deserve any interference. Consequently, the Appeal

                       fails and is accordingly dismissed.




                       (MANJUSHA DESHPANDE, J.)                (BHARATI DANGRE, J.)


          Digitally
          signed by
          RUSHIKESH
RUSHIKESH VISHNU
VISHNU    PATIL
PATIL     Date:
          2026.08.06
          13:46:08
          +0530




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