Divorce Cannot Be Granted Merely Because One Party Remains Absent; Court Must Assess Evidence Even In Ex Parte Proceedings: Bombay High Court
The Bombay High Court has held that a decree of divorce cannot be passed merely because one of the parties remains absent or fails to file a written statement. The Court observed that even in ex parte proceedings, the trial court must independently assess the petitioner's evidence and record findings based on the merits before dissolving a marriage.
A Division Bench of Justice Revati Mohite Dere and Justice Sandesh D. Patil was hearing a family court appeal filed challenging the judgment and decree of divorce dated 5 November 2024, passed by the Family Court, which had dissolved her marriage. The husband had filed a petition under Section 27(1)(d) of the Special Marriage Act, 1954, on the ground of cruelty. The wife, though initially appearing before the court, did not file a written statement or lead evidence, following which the matter proceeded ex parte and the marriage was dissolved.
The Court found that the Family Court had decreed the divorce without any analysis of the husband's evidence or reasons for accepting his allegations. It noted that the trial court had held that the wife treated the husband with cruelty merely because the testimony of the husband went unchallenged. It observed:
“… the Trial Court surprisingly has not given any reasons as to how it has reached the said conclusion. The entire issue number 1 is disposed of hurriedly in a casual manner. The only reason why the Trial Court found that the appellant-wife has treated the respondent husband with cruelty is, that the testimony of the husband had gone unchallenged.”
The Bench reiterated that proceedings decided ex parte are not to be decreed automatically and that the burden remains on the petitioner to prove the case on the merits.
“The Trial Court has totally been oblivious of the legal position that merely because the proceeding has been ordered to be decided ex parte, does not mean that the proceeding has to be decreed automatically. The Trial Court lost sight of the fact, that even though the party has not filed written statement, the contentions of the plaintiff/petitioner cannot be considered as gospel truth and that it has to be analysed independently on merits by the Trial Court,” the Court observed.
The Court remarked that the trial court disposed of the case in hand in a casual and mechanical manner; it was incumbent upon the Trial court to record its findings based upon the evidence led by the respondent-husband.
Accordingly, the Court quashed the decree of divorce dated 5 November 2024 and remitted the matter to the Family Court for fresh adjudication from the stage of filing of the written statement. The wife was permitted to file her written statement within 30 days, and the Family Court was directed to decide the case within nine months.
Advocates:
- Ms. Priyanka Desai with Ms. Tvisha Desai and Ms. Janhavi Pise, instructed by The Fort Circle Advocates & Solicitors, for the Appellant.
- Ms. Pushpa Verma with Mr. Moiez Shaikh, for the Respondent.
Case Title: Riya Suralkar v. Rahul Suralkar [Family Court Appeal No. 101 of 2025]