Appeal by wife challenging Family Court dissolution decree. High Court found serious errors in finding desertion and granting conditional divorce, setting aside the order for fresh disposal.
Judgment and decree dated 28.03.2018 set aside; proceedings remanded to Family Court for fresh consideration and disposal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/FA/1937/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1937 of 2018 With CIVIL APPLICATION NO. 1 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE B.N. KARIA
========================================================== BINDYABA NARENDRASINH VALA Versus JITENDRASINH RANJITSINH JADEJA
========================================================== Appearance: MR ASHISH M DAGLI(2203) for the PETITIONER(s) No. 1 for the RESPONDENT(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE B.N. KARIA
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C/FA/1937/2018 JUDGMENT
Date : 31/07/2018 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
“1. The suit/application of the present petitioner/plaintiff is hereby allowed as under:
a. The marriage soleminized between the parties on dated 09.03.2004 are ordered to be dissolved with the decree of divorce from the date of this judgement subject to the condition that the petitioner/plaintiff should pay Rs. 5,00,000/(rupees five lacs only) to the opponent/defendant for permanent alimony, if the petitioner/plaintiff is failed to pay Rs. 5,00,000/- (rupees five lacs only) within 30 days from today to the opponent/defendant for permanent alimony the suit is treated as dismissed.
b) The right of minor son 'Rushiraj” to get maintenance as well as to get the right from the properties or any other rights from his father has not been effected by this order, it will remained continued.” 2. Though served, no one appeared for the respondent. We have heard learned counsel for the appellant at considerable length. The facts emerging from the record are that the marriage
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C/FA/1937/2018 JUDGMENT
between the appellant and the respondent took-place according to Hindu rites on 09.03.2004 at Upleta. One son was borne out of such wedlock. However, soon thereafter, matrimonial disputes surfaced. According to the wife, she was ill-treated by the husband and his relatives. She was therefore, forced to leave her matrimonial home. The case of the respondent was that the wife, without any just cause or excuse, left the house and despite best efforts on his part, did not return. He filed the Family Suit in the year 2012 seeking dissolution of marriage. This petition was strongly opposed by the wife. She filed a written statement and also entered the witness box. The Family Court, by the impugned judgement and decree, allowed the petition of the husband and ordered dissolution of marriage subject to the condition that the husband pays a sum of Rs. 5 lacs to the wife for permanent alimony within 30 days failing which, the suit would be treated to have been dismissed. Even this clarification of Rs. 5 lacs for permanent alimony is not preceded by any reasoning. The learned Judge merely observed as under:
“It is come on record that the opponent/defendant has demanded Rs. 50,00,000/- (rupees fifty lacs only) but if, some reasonable amount is awarded by the Court to the opponent/defendant from the petitioner/plaintiff the principles of natural justice is to be observed and as per my view Rs. 5,00,000/- (rupees five lacs) is sufficient amount to meet the expenses to her livelihood.”
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C/FA/1937/2018 JUDGMENT
There is thus no discussion on why the learned Judge thought that Rs. 5 lacs by way of permanent alimony was correct figure. There is no discussion of the income of the husband and his capacity to pay the alimony.
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C/FA/1937/2018 JUDGMENT
immediately upon signing of the judgement but if the husband did not fulfill the condition of depositing with the wife, amount of alimony within thirty days, the petition for dissolution of marriage would stand dismissed.
(AKIL KURESHI, J)
(B.N. KARIA, J)
JYOTI V. JANI
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3 issues framed by the court
Whether the Family Court erred in concluding that the wife deserted the husband without sufficient reasoning.
Whether a conditional decree of divorce linking dissolution to the payment of permanent alimony is legally valid.
Whether the High Court should set aside the impugned judgment and decree for fresh consideration.
Colour shows how this judgement treated each authority
JYOTI V. JANIReferred¶37
BINDYABA NARENDRASINH VALA
JITENDRASINH RANJITSINH JADEJA
AKIL KURESHI
B.N. KARIA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
