Wife Having Knowledge Of Legal Procedure Cannot Ask For Setting Aside Divorce Decree On Ground Of Illiteracy: Bombay HC

The Bombay High Court while upholding the order of the Family Court in a divorce case held that the appellant i.e., the wife having knowledge of the legal procedure cannot claim illiteracy for setting aside the divorce decree.

The Division Bench comprising Justice Nitin Jamdar and Justice Sharmila U. Deshmukh stated –

"In the present case, the Appellant - wife chose not to remain present despite summons having been served, and the Appellant thereafter cannot be heard to argue that it was the duty of the Family Court to force her to remain present. It is an established position from record that the summons was served, yet the Appellant refused. The Appellant had knowledge of the legal procedure, having filed three criminal cases. On several dates, after the summons was served since the Appellant did not remain present, and the decree of divorce came to be passed. After waiting for almost six months, the family Court had no option but to proceed further and grant the decree of divorce. We do not find any error in the view taken by the learned Family Court Judge."

Advocate Tejesh Dande represented the appellant whereas, Advocate Raj J. Khude appeared for the respondent.

Brief Facts of the Case –

The parties of the case got married in the year 1986 at Ahmednagar. There are three children from the wedlock. After that, the parties resided in Mumbai. The appellant's behaviour changed after some period, and quarrels arose between the husband and wife. The respondent i.e., the husband filed a petition on the ground of mental cruelty. He stated that the appellant had illicit affair with one person who was joined as a respondent in the petition. He alleged that the appellant was abusing and humiliating him and ultimately in 2003, she left the matrimonial home. The appellant never took care of the children and used to steal money from the respondent and give it to her paramour, the co-respondent.

Thereafter, the Summons was served on the Appellant and got returned with the endorsement "refused". The Family Court Judge noted that a case was made out for divorce and, accordingly, on December 17, 2007, the decree of divorce was granted. Hence, the appellant filed an application for setting aside the decree. It was stated that the appellant i.e., the wife, an illiterate lady, was not aware of the legal procedure, and upon legal advice, she did not remain present, and this is a case where the decree of divorce should be set aside, and the Appellant should be given an opportunity. The Family Court by a detailed order dated November 13, 2008, after examining the evidence, dismissed the application.

Therefore, the appellant being aggrieved with such an order filed an appeal in the Bombay High Court seeking the setting aside of the divorce decree.

The High Court after going through the matter observed –

"The Respondent has remarried. According to the Respondent, who appears in person, the Appellant - wife is now living with the co-respondent in Gujarat and is only harassing the Respondent with demands for money. Considering the totality of the circumstances, we do not find that there is any case made out to set aside the impugned order. The Appeal is, therefore, dismissed."

The Court further held that "Regarding arrears pursuant to the interim order, it is open to the Appellant's wife to take appropriate proceedings in that regard, and the dismissal of appeal will not come in the way of the Appellant."

Accordingly, the High Court dismissed the appeal and disposed of the application.

Cause Title – Rohini Raju Khamkar v. Raju Ranba Khamkar

Click here to read/ download the Judgment