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Bombay High Court

RAJESH OMDUTT SHARMAversusKIRAN RAJESH SHARMA

Decided
Disposal
Disposed Off

Holding

The decree must be set aside only after the respondent is given a proper opportunity to present her side.

Summary

The petitioner challenged an order dated 20 July 2022 that set aside an ex‑parte divorce decree dated 13 January 2019 and restored a marriage petition filed in 2017. The petitioner argued that the divorce decree was valid, he had remarried, and the respondent had been given ample opportunity to appear but failed to do so. The respondent did not appear, yet the Family Court set aside the divorce decree, citing the need to give the respondent a chance to be heard. The High Court held that the principle of audi alteram partem requires the respondent be afforded an opportunity to present her case before any decree is set aside. Consequently, the writ petition was disposed of, directing the Family Court to decide the pending marriage petition within six months, keeping both parties' contentions open.

Issues considered

  • Whether an ex‑parte divorce decree can be set aside without affording the respondent an opportunity to be heard
  • Whether the Family Court erred in restoring the marriage petition without ensuring procedural fairness

Subjects

  • ex‑parte decree
  • set aside
  • family law
  • marriage petition
  • audi alteram partem
  • procedural fairness
  • writ petition

Judgment

                                                                          76-WP-12159-2023 (C).doc

                   Tikam

                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION

                                         WRIT PETITION NO. 12159 OF 2023

                       Rajesh Omdutt Sharma                                   ...Petitioner/s
                       VERSUS
VAISHALI               Kiran Rajesh Sharma                                    ...Respondent/s
ANIL
TIKAM
                       _________________________________________________________________
Digitally signed
by VAISHALI            Mr. Ishaan V. Patkar a/w. Mr. Vinit V. Raje, i/by Akshay Manvakar,
ANIL TIKAM
Date:
2026.09.09
                       Advocate for Petitioner.
17:15:03 +0530         None for Respondent.
                       _________________________________________________________________

                                                          CORAM      :    SHIVKUMAR DIGE, J.
                                                          DATE       :    2nd SEPTEMBER, 2026.
                       P.C. :

                       1.        Heard learned counsel for the Petitioner.

                       2.        The challenge in this petition is the impugned order dated

                       20/07/2022 whereby ex-parte decree dated 13/01/2019 is set aside and

                       Marriage Petition No. 1041 of 2017 was restored.

                       3.        Learned counsel for the Petitioner submits that sufficient

                       chances were given to the Respondent. After considering evidence led by

                       the Petitioner, the divorce decree was passed in favour of the Petitioner

                       and after passing the divorce decree, the petitioner has remarried.

                       Thereafter, on application of the Respondent, the said ex-parte divorce

                       decree is set aside and Marriage Petition of the Respondent is restored,

                       which is erroneous.



                                                      Page 1 of 2
                                                         76-WP-12159-2023 (C).doc

Tikam

    4.         Though respondent was served, none appears for the

    Respondent. As Learned Family Court has set aside the impugned order by

    observing that opportunity should be given to the Respondent to place her

    side. In my view, it settled principle of law that opportunity be given to put

    her side. If contentions of both the parties are kept open and direction

    given to Family Court to decide Marriage Petition No. 1401 of 2017 as

    early as possible, preferably within six months, I pass following order:

                                       ORDER

    (i)        Writ Petition is disposed of by keeping contentions of both the

    parties open and Learned Family Court shall decide the Marriage Petition

    No. 1401 of 2017 as early as possible, preferably within six months.




                                                   (SHIVKUMAR DIGE, J.)




                                     Page 2 of 2


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