Mamta vs Amar Dineshchandra Rav

A.L. Dave, J.—The appeal is admitted.

Learned advocate Mr Dave appearing on behalf of Ms Kruti Shah for the Respondent waives service of notice of admission.

The decree challenging the appeal is an ex-parte decree passed by the trial Court against the Appellant and learned advocate Mr Dave concedes to this fact situation.

Since only a narrow question arises for determination of this Court, at the request of the learned advocates for the parties, the appeal is finally heard today.

The decree under challenge is passed by Principal Judge, Family Court, Surat on 21.12.2009 directing the Respondent therein, Appellant herein, to stay with the Respondent herein, her husband, and satisfy his conjugal rights. It is very clear from the judgment that the said decree was passed ex-parte, though technically speaking, the Appellant had filed written statement Exh.8. However, as is revealed from para 7 of the judgment, the Petitioner''s ocular evidence was not challenged by cross-examining him nor has the Appellant herein, Respondent before the trial Court, led any evidence in support of the assertions made and contentions taken in written statement Exh.8.

The dispute between the parties is matrimonial. Not only their respective lives, but life of a young child is also at stake. Under the circumstances, it is better that the dispute between the parties is either resolved or decided by both the sides getting proper opportunity to represent their case and, therefore, we set aside the decree passed against the Appellant, which is the decree impugned, and remand the matter to the trial Court for a fresh trial, starting from the stage of cross-examination of the Petitioner, Respondent herein. Ordered accordingly. No costs.

In light of the fact that the appeal has been disposed of, both the civil applications would not survive and are accordingly disposed of.