Allowed¶¶20

Jayshree Chandraprakash Chavan v. Chandraprakash Kailas Chavan

Hindu Marriage Act, 1955 – S.13(1)(ia) – divorce on ground of desertion

Bombay HC10 Jul 2025WP/884/2023

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Case brief

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What is this about?

Witness summons; Exhibit-47; Marriage Petition no.14 of 2016; Hindu Marriage Act S.13(1)(ia); desertion; second marriage as good defence; fair opportunity to lead defence evidence; Sarpanch of Ner Grampanchayat; Doctor of Jalna Hospital; Asha Rathod; Civil Judge S.D. Aurangabad; impugned order dated 18.11.2022; writ petition allowed; time-bound disposal (two months for witnesses, four months for proceeding).

What did the court decide?

Writ petition allowed in terms of prayer clause 'B' and disposed of; petitioner directed to examine all her witnesses within two months and to co-operate with the learned Civil Judge S.D. so that the proceeding is disposed of within four months thereafter. ¶¶20

Jayshree Chandraprakash Chavan Vs Chandraprakash… — Matrimonial and Divorce | Bombay HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the order dated 18.11.2022 of the Civil Judge S.D., Aurangabad, rejecting the petitioner's application below Exhibit-47 seeking issuance of witness summons in Marriage Petition no.14 of 2016, is sustainable. +1 more

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Court's answer

In her endeavour to prove her defence by examining four witnesses (including the Sarpanch of Grampanchayat, Ner and a Doctor from Jalna Hospital), the Trial court ought to have allowed the application and granted the petitioner a fair opportunity to prove her case.

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Ratio / Principle

When the respondent/husband seeks divorce on the ground of desertion, the petitioner/wife is entitled to put up her defence that she is residing away from him for valid reasons; if the husband has contracted a second marriage, that may constitute a good defence.

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Key takeaways

It cannot be disputed that the petitioner took a specific defence that the respondent contracted a second marriage during the subsistence of the first marriage and deserted the petitioner/wife.ratio¶¶16
The impugned order rejecting the application for issuance of witness summons cannot be sustained in law.ratio¶¶20

Detailed headnote1 paragraphs

Hindu Marriage Act, 1955 — S.13(1)(ia) — divorce on ground of desertion — witness summons. The Civil Judge S.D., Aurangabad rejected the wife's application below Exhibit-47 in Marriage Petition no.14 of 2016 (husband's petition for dissolution of marriage) seeking summoning of four witnesses, including the Sarpanch of Grampanchayat, Ner and a Doctor of Jalna Hospital, to prove her pleaded defence that the husband had contracted a second marriage with one Asha Rathod; rejection rested mainly on absence of any pleading that Asha had begotten a child from the second marriage and absence of Grampanchayat record. Held: a wife resisting divorce on the ground of desertion is entitled to put up the defence that she resides away from the husband for valid reasons, and the husband's second marriage may constitute a good defence; the trial court ought to have allowed the application and granted a fair opportunity to prove the case. The impugned order cannot be sustained in law. Writ petition allowed in terms of prayer clause 'B' and disposed of, the petitioner to examine all witnesses within two months and the proceeding to be disposed of within four months thereafter.

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2025:BHC-AUG:18281

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wp 884.23.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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905 WRIT PETITION NO. 884 OF 2023

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Jayshree Chandraprakash Chavan VERSUS

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Chandraprakash Kailas Chavan

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Advocate for Petitioner : Mr. R.B. Ade Advocate for Respondent : Mr. S.B. Solanke

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CORAM : S. G. CHAPALGAONKAR, J. Dated : July 10, 2025

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PER COURT :-

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The petitioner impugns the order dated 18.11.2022 passed by the learned Civil Judge S.D., Aurangabad below Exhibit-47 in Marriage Petition no.14 of 2016, whereby application of petitioner filed below Exhibit-47 seeking issuance of the witness summons has been rejected.

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Mr. Ade, learned advocate appearing for petitioner submits that respondent instituted proceeding under section 13 (1)(ia) of the Hindu Marriage Act, 1955 seeking decree of dissolution of marriage. Petitioner appeared in the proceeding and filed her written statement and specifically pleaded that respondent has contracted second marriage with one Asha Rathod, r/o Ner, Tq. & District Jalna. In pursuance of the

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2 wp 884.23.odt

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defence, petitioner wanted to examine four witnesses i.e. Sarpanch of Ner Grampanchayat, Doctor of Jalna Hospital and others However, her request is turned down.

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Mr. Shrikrashna Solanke, learned advocate appearing for respondent submits that entire burden to prove case of desertion is upon husband. Proceeding of divorce is pending for almost eight years and present application is moved at the stage when matter was posted for arguments. According to him, petitioner is protracting the matter. Application was not bonafide. Therefore, he supports the impugned order.

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Having considered submissions advanced, it cannot be disputed that petitioner has taken a specific defence that respondent has contracted second marriage during subsistence of first marriage and deserted petitioner/wife. Perusal of impugned order shows that application for issuance of witness summons is rejected mainly on the ground that there is no pleading that said Asha had begotten child from second marriage or no record is produced from Grampanchayat, Ner to show the entry recording birth or second marriage.

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wp 884.23.odt

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On considering overall conspectus of the matter, when respondent/husband sought divorce on the ground of desertion, petitioner/wife was certainly entitled to put up her defence that she is residing away from husband for valid reasons. If husband has contracted second marriage, that may constitute good defence. In her endeavor to prove defence, she wants to examine four witnesses including Sarpanch from Grampanchayat, Doctor from Jalna Hospital and other two to establish her case. In that view of the matter, Trial court ought to have allowed the application and granted fair opportunity to petitioner to prove her case.

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In result, the impugned order cannot be sustained in law. Hence, writ petition is allowed in terms of prayer clause ‘B ’ and disposed of . It is made clear that, petitioner shall examine all witnesses within a period of two months from today and co-operate learned Civil Judge S.D. in his endeavor to dispose the proceeding within a period of four months thereafter.

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( S. G. CHAPALGAONKAR, J. )

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Jayshree Chandraprakash Chavan v. Chandraprakash Kailas Chavan

Case brief

What is this about?

What did the court decide?

Jayshree Chandraprakash Chavan v. Chandraprakash Kailas Chavan

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

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Coram

Case details

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