Right to a fair hearing and opportunity to present evidence are fundamental in divorce proceedings, highlighted by the court's decision to remand for fresh adjudication.

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. The present appeal is filed against judgment and decree dated 02.08.2023 passed by the Principal Judge, Family Court, Ahmedabad in Family Suit No.803 of 2018, whereby the Family Court allowed the divorce petition filed by the respondent- husband on the ground of cruelty under S.13(1) (i-a) of the Hindu Marriage Act , 1955.

2. Learned Advocate for the appellant-wife submitted the appellant, upon being served with the notice by the Family Court, had appeared and filed application at Exh.12 to engage an advocate which was granted and thereafter Vakalatnama had also been filed at Exh.18. However, as no reply was filed, her right to file reply came to be closed by the Family Court vide Exh.14. As the appellant-wife did not come forward to cross-examine the present respondent or lead evidence, right to cross-examine and to lead evidence also came to be closed by the Family Court vide Exh.20 and Exh.29 respectively.

2.1 It is submitted that the appellant filed an application at Exh.30 praying for reopening of her right to file reply and cross- examine the present respondent, which came to be rejected by the Family Court observing that the suit was five years old and that the present appellant has adopted delaying tactics.

2.2 It is further submitted that application at Exh.30 praying for reopening of her right to file reply and cross-examine was rejected without proper reasoning and that it violated principles of natural justice. The Court has thereafter proceeded ex parte and passed the said judgment and order based on the record of the case coupled with the material produced by the petitioner-husband (respondent herein) vide Exh.22 to Exh.27, affidavit vide Exh.18 and the oral submissions made on his behalf.

2.3 Learned Advocate for the appellant submitted that the Family Court has proceeded with the matter without giving any intimation for proceeding ex-parte in absence of the appellant and that the appellant had not received any communication from the respondent.

2.4 It is also submitted that the respondent-husband failed to lead any evidence so as to establish his case and that the Family Court overlooked the proceedings under the Domestic Violence Act wherein the Magistrate had partly allowed the application and observed that the respondent has inflicted mental and physical torture upon the appellant.

3. Learned Advocate for the respondent-husband supported the judgment and decree of the Family Court and submitted that though sufficient time was granted to the appellant- wife to lead evidence and to file reply, she intentionally did not do so and adopted delaying tactics and therefore, the Family Court has rightly passed the impugned judgment and decree.

4. Having perused the submissions and the material on record, the Court is of the opinion that the Family Court has passed the said judgment and order primarily based on the technical or procedural grounds such as, failure of the appellant to file reply, cross-examine and to lead evidence. The Family Court has failed to examine whether the various incidents in the allegations levelled against the appellant are sufficient so as to establish a case of cruelty. Further, the Family Court has not assigned reasoning and has solely relied on the affidavit and submissions made by the respondent while passing the judgment by making an adverse inference against the appellant. In this regard, reference can be made to a judgment of the Apex Court in State of Orissa and Ors. Vs. Chandra Nandi, reported in 2019 (4) SCC 357 wherein the Apex Court while remanding back an order of the High Court has observed as under:-

“10. This