FA/3691/2026 of JYOTIPRIYANKA W/O NARENDRA MAHAVAR D/O DURGESHBHAI DHAKA Vs NARENDRA RAMDAYAL MAHAVAR on 24 August 2026

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA) Order in First Appeal

1. We have heard learned counsel Mr. Sandip Munjyasara with Ms. Vaibhavi Raval and Mr. M.H. Shekhawat appearing for the respective parties.

2. This first appeal, under Section 19 of the Family Courts Act, 1984, is directed against the judgment and decree dated 28.02.2026, passed by the Court No.7, Family Court at Ahmedabad in Family Suit No.2953 of 2023, whereby the Family Suit for divorce filed by the respondent- husband came to be allowed on the ground of desertion and cruelty. Admittedly, the appellant-wife had not led any evidence before the family court and decree of dissolution of marriage is being passed on the basis of evidence of respondent-husband.

3. Mr. Sandip Munjyasara, learned counsel while assailing the judgment and decree, submitted that, the family court cannot grant divorce mainly because the allegations in the petition are unrebutted and as such, on the ground of desertion and cruelty, the Family Court failed to give reasons for arriving at the conclusion on the issues. Thus, it is submitted that, in absence of proper adjudication of the issues made by the family court, let matter be remanded to decide the trial afresh.

4. On the other hand, Mr. Shekhawat, learned counsel appearing for the respondent invited our attention towards paragraph nos.13 and 14 of the impugned judgment and decree to contend that, the reasons have been assigned by the family court and the wife-appellant remained absent throughout the proceedings, nor led any evidence to substantiate the allegation and therefore, the family court has rightly drawn adverse inference while relying upon the evidence of the respondent-husband. Thus, it is submitted that, no case is made out for remanding the matter for fresh trial.

5. We have considered the submissions advanced by learned counsel appearing for the respective parties and perused the judgment impugned. In the facts of the present case, despite of service of summons, the appellant-wife did not remain present before the family court. On this issue, one of the ground raised in the appeal that, the appellant-wife had retained an advocate for the defense, but because of lack of communication, the counsel did not remain present to conduct the trial and on advice, the appellant-wife had filed a transfer petition before the Supreme Court to transfer the family suit from Ahmedabad to Ajmer Family Court. In these background facts, on perusal of the reasons assigned by the trial court to proceed ex parte with the matter, it is evident that, the family court has simply accepted the contents of the affidavit in chief filed by the respondent-husband. In such circumstances, we are of the considered opinion that, while passing the ex parte decree, the court is duty bound to consider the merits of the case and assign proper reasons on the issues of desertion and cruelty as the burden lies upon the husband to prove his case by adducing cogent evidence and arrive at independent conclusion that the alleged acts constitute cruelty and ingredients of desertion. The observations on this aspect made by the family court in paragraph nos.13 and 14 are based on the pleadings, rather than proper appreciation of evidence and settled law by the Supreme Court in its various judgments.

6. For the reasons recorded, having regard to the facts and circumstances of the case, the impugned judgment and decree under challenge is not sustainable in law and same is set aside and the matter is remanded for a fresh trial and family court shall decide the suit on its own merits independently in accordance with law. The appellant-wife shall cooperate with the trial proceedings. The Family Court shall decide the suit afresh within a period of one year from the date of receipt of this order.

7. In the aforesaid terms and directions, this appeal stands disposed of accordingly. The observations made herein above are tentative in nature and confined only to adjudication of this appeal. Order in Civil Application In view of disposal of the main matter, cause for filing this application would not survive. Hence, the present application stands disposed of accordingly. Notice discharged. (ILESH J. VORA,J) (R. T. VACHHANI, J) TAUSIF SAIYED

Original copy of this order has been signed by the Hon'ble Judges. Digitally signed by: TAUSIFAHMED SAIYED(HC01401), PRIVATE SECRETARY, at High Court of Gujarat on 25/08/2026 11:41:59