The Family Court must substantiate claims of cruelty with sufficient evidence, including corroborative testimony, rather than relying solely on the respondent's statements.

ORDER :

BIREN VAISHNAV, J.

1. Draft amendment granted. Heard Mr.Samir Afzal Khan, learned counsel appearing for Mr.Aman Mir, learned counsel for the appellant and Mr.Mahesh Purohit, learned counsel appearing for Mr.Tanmay Joshi, learned counsel for the respondent. With consent of the learned advocates for the parties, the appeal is taken up for final hearing today.

2. Admit.

3. This appeal has been filed by the appellant-wife challenging the judgement and decree dated 14.11.2022 passed by the Family Court, Jamnagar. By the aforesaid judgement and decree, the Family Suit No. 25 of 2022 filed by the respondent – husband praying for divorce under Sec.13(1)(i-a) of the Hindu Marriage Act on the ground of cruelty against the appellant herein was granted. This judgement and decree is under challenge at the hands of the wife.

4. Mr.Samir Afzal Khan, learned counsel appearing for Mr.Aman Mir, learned counsel for the appellant, made the following submissions:

4.1 He would submit that there is nothing on record to suggest that the grounds of cruelty have been established by the Family Court. He would submit that, though an application was filed under Sec.13 for divorce claiming that the appellant was misbehaving with the family members of the husband – respondent herein, except the respondent having been examined, no other evidence has been led before the Family Court to establish the grounds of cruelty.

4.2 Mr.Samir Afzal Khan, learned counsel, would further submit that the judgement and decree has been passed ex-parte, inasmuch as, the Family Court at Jamnagar, after recording that she had appeared through her lawyer, closed the right of filing the written statement and the suit proceeded ex-parte. He would further submit that the judgement and decree of the Family Court be set aside and the matter be remanded for a fresh consideration by the Family Court. For this submission, he would rely on an application filed at Exh.20 by the respondent requesting the Family Court to close the stage of filing of written statement which according to the learned counsel for the appellant was not served on the appellant.

5. Mr.Mahesh Purohit, learned counsel appearing for Mr.Tanmay Joshi, learned counsel for the respondent, would submit that sufficient grounds were made out before the Family Court for granting of divorce under Sec.13 of the Hindu Marriage Act. Reading the memo of the application filed under Sec.13, he would submit that what was clearly set out in the application was that the appellant would always want to return to her parental home without sufficient cause. She would be in the habit of fighting with his family members and even on an occasion when the father of the respondent was serious, she insisted that they should establish a separate home. An incident of 26.04.2021, in which the appellant would fight with her sister-in-law (Bhabhi) has also been highlighted in the memo of the application to suggest that being quarrelsome, the respondent was entitled to a decree of divorce.

5.1 During the course of hearing of the appeal, Mr.Samir Afzal Khan, learned counsel, had drawn our attention to the fact that this Court, while considering the judgement and decree under challenge, had on 23.11.2022 while issuing notice to the respondent stayed the judgement and decree of the Family Court. We also note that the appeal on 27.03.2023 was also dismissed for non-prosecution. He has placed on record additional affidavit of one Nidhesh Kumar Mehta filed in the civil application for stay. A certificate of registration of marriage dated 27.12.2022 indicates that the respondent got married on 21.12.2022 pending the appeal fully knowing that there was a stay against the judgement and decree of the Family Court by which the respondent was granted divorce.

6. Having considered the submissions made by the learned counsels appearing for the respective parties and without being influenced by the subsequent even