Trial Court Must Assess Evidence Even In Ex-Parte Divorce Proceedings: Bombay High Court Quashes Decree Despite Husband’s Remarriage

The Court emphasised that even in ex parte proceedings, the trial court must independently examine the evidence and give reasoned findings.

The High Court was hearing a Family Court Appeal challenging the judgment of the Family Court, which granted a decree of divorce on allegations of cruelty solely on the basis that the wife did not participate in the proceedings.

A Division Bench comprising Justice Revati Mohite Dere and Justice Sandesh D. Patil, while adjudicating the matter, remarked: “During the hearing of the matter, we were informed by the parties that during the pendency of the aforesaid appeal, the respondent-husband has remarried. Once we have held that the impugned judgment and order runs contrary to the various judgments of the Apex Court as quoted in the foregoing paras, the fact, that the respondent-husband has remarried would not deter us from quashing and setting aside the judgment and order passed by the trial court, when found to be perverse.”

Advocate Priyanka Desai appeared on behalf of the appellant, while Advocate Pushpa Verma represented the respondent.

Background

The marriage between the parties was solemnised in 2017 under the Special Marriage Act. The husband filed a petition for divorce before the Family Court, alleging cruelty. The wife initially appeared but failed to file a written statement within time, following which her right to file a defence, lead evidence, and address arguments was closed.

The Family Court proceeded ex parte, accepted the husband’s unchallenged testimony, and decreed divorce. Aggrieved, the wife approached the High Court, contending that the trial court had decreed the petition mechanically and without analysing the evidence.

The husband opposed the appeal, arguing that the testimony stood uncontroverted and, therefore, the decree was justified. It was also brought to the notice of the Court that during the pendency of the appeal, the husband had remarried.

Court’s Observation

The Bombay High Court held that ex parte divorce cannot be granted by default and that the trial judge is duty-bound to assess the evidence on merits. The Bench noted that the Family Court gave the decree solely because the wife remained absent, without recording any findings or reasons.

Referring to Balraj Taneja & Anr. v. Sunil Madam, the Bench noted that “even though no written statement was filed, yet the Trial court cannot automatically allow the proceeding and that the trial court should consider the case of the petitioner on its own merits.”

The Bench further noted that the trial court failed to analyse testimony or record reasons and decreed divorce merely because the wife remained absent. Such an approach, the Court held, was contrary to settled principles of matrimonial jurisprudence.

The Bench concluded that “the Trial Court ignored the well-settled position of law, that merely because a party did not lead evidence or merely because the party/respondent did not file a written statement, the proceedings are not to be decreed automatically.”

Conclusion

Allowing the appeal, the High Court quashed the divorce decree and remitted the matter to the Family Court for fresh adjudication from the stage of the written statement.

The wife was permitted to file her written statement within 30 days, and the Family Court was directed to frame issues, allow parties to lead evidence, and decide the case within nine months.

Cause Title: ABC v. XYZ (Neutral Citation: 2025:BHC-AS:45841-DB)

Appearances

Petitioner: Advocates Priyanka Desai, Tvisha Desai & Janhavi Pise

Respondents: Advocates Pushpa Verma, Moiez Shaikh

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