Married, divorced and back to court

Feb 24, 2013, 07:21 IST | Samarth Moray

Bombay HC admits woman's plea against divorce decree by family court that passed an ex-parte order in 2005 after the woman left for Australia in violation of a court order

The Bombay High Court has admitted the plea of a woman and granted her a re-trial after a family court gave her husband a divorce from her while she was in Australia, allegedly in violation of a court order. Dorothy (53) had divorced her first husband in Australia and married Aspi Kerawala (42) in 1988. Kerawala, 12 years her junior, was studying at the Australian Maritime College then. She had allegedly told him she wanted to have kids, but when the couple moved to Mumbai after marriage, he discovered she had already had a hysterectomy and could not conceive.

Marine Street-resident Aspi Kerawala and Dorothy who is from Victoria, Australia met Down Under, when Dorothy was still married to her first husband, Jamshed Dastur. After the divorce with Jamshed came through on October 20, 1988, she married Aspi on November 11 the same year. It was only after the marriage that Dorothy told Aspi that she had had a hysterectomy, and was unable to conceive. Though he felt cheated, Aspi agreed to adopt a child and settle down in Mumbai. The couple returned to Mumbai in 1990, but a year later, Dorothy allegedly deserted him and returned to Australia.

Kerawala filed for divorce on the ground of desertion in 2002 in the Bandra Family Court. After initially remaining untraceable, Dorothy eventually sent a lawyer on her behalf to the family court. On October 21, 2004, Dorothy arrived in Mumbai to attend the hearing, and gave an undertaking that she would not leave India without the court’s permission. In January 2005, she made an application seeking permission to leave the country, which was rejected. Her challenge to that rejection was also rejected, but she left the country anyway. She returned in March the same year, only to learn a decree of divorce had already been passed.

Dorothy then challenged the divorce in the High Court.

On Friday, the division bench of justices NH Patil and AR Joshi observed, “From the record it emerges that [Dorothy] did not participate in the proceedings of the petition filed by the respondent. She could have been more diligent… In spite of the undertaking given to the court it seems she had left India for Australia on the pretext that her air ticket was to expire.”

Aspi’s lawyer VM Daver also argued that Dorothy had deliberately created hurdles to delay the Family Court proceedings.

The court, however, concluded that Dorothy needed to be given an opportunity to present her side of the case. The bench said, “There is substance in the submissions of [Kerawala’s lawyer] but at the same time it will have to be seen that the consequence of a decree of divorce are far-reaching and affect the marital status of the parties.” The court then ordered the entire case to be retried by the Family Court within six months, with a warning to both parties not remain absent from proceedings for more than two consecutive dates.

(Names of the litigants have been changed to protect their identities)

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