Deepesh Singh Thakur vs Mamta Thakur

Heard.

The challenge in this petition is to the judgment and decree dated 23.08.2019 (Annexure A-1), wherein learned Family court, Kanker has passed a decree of divorce to dissolve the marriage between the parties which was solemnized on 24.02.2012.

Learned  counsel  for  the  appellant  would  submit  that  the  wife (respondent herein) was the appellant before the Court below. He would submit that the husband was not given proper opportunity to lead evidence before the Court below. Consequently, the judgment and decree passed by the learned Family court has taken into sweep only the evidence led by the wife which could have been reverted by the husband by leading the evidence. It is further submitted that husband may be given opportunity of hearing, to lead evidence and he would produce the witness if certain fixed dates are given. Therefore, at this stage without going into the merits the judgment and decree passed by the Court below may be set aside after giving opportunity to lead evidence to the husband.

Learned counsel for the respondent vehemently opposes the argument and submits that many opportunities were granted to the husband, however, the husband failed to adduce any evidence. Consequently, only on the evidence led by the wife the orders were passed, therefore, the order is well merited and do not call for any interference.

We have heard learned counsel for the parties and perused the records.

The limited scope which has been projected before us by the husband/ appellant is that he was not given proper opportunity to lead evidence. This argument necessarily leads us to lay hands to the order sheet of the original records as to know whether proper opportunity to lead evidence was given to the husband or not ? The inspection of the records would show that evidence of wife concluded on 27.07.2019, thereafter the case was fixed to lead evidence by the husband on 03.08.2019. On 03.08.2019 prayer was made for further date to lead evidence on behalf of the husband and the case  was adjourned to 13.08.2019. On 13.08.2019 another prayer was made for adjournment to lead evidence and as last indulgence date was given on 16.08.2019 to the husband. On 16.08.2019 again the husband failed to appear with the witness, as such the right to lead evidence on behalf of the husband was closed. The time gap in between the 3 dates in our opinion appears to be meager as from 03.08.2019 up till 16.08.2019 the time gap is only of 13 days. Therefore, at this stage without deliberating much into merits of the evidence lead by the wife, liberty is granted to the husband to lead evidence on a fixed date before the learned Family court. Therefore, we deem it proper to set aside the judgment and decree dated 23.08.2019 and remand back the case to learned Family court with a fix date of 12th April, 2022 for leading evidence by husband. A liberty of adjournment may be granted if any unavoidable circumstance is explained before the Court below. It is further directed that the Court shall pronounce the judgment and decree within a further period of 2 weeks from the closure of the evidence.

With such observation, the appeal is disposed off.

The Registry is directed to send back the records forthwith to the learned family court.