Even in Ex Parte Divorce Cases, Courts Must Record Independent Findings on Cruelty: Bombay High Court Remands Divorce Decree for Fresh Trial

"A decree of divorce cannot rest solely on absence or unchallenged testimony; the Family Court must assess cruelty on merits, even in ex parte proceedings" – Bombay High Court  underlining the legal mandate that even in ex parte matrimonial proceedings, a Family Court cannot pass unreasoned decrees of divorce without assessing evidence independently. The Division Bench of Justice Revati Mohite Dere and Justice Sandesh D. Patil set aside an ex parte divorce decree passed under Section 27(1)(d) of the Special Marriage Act, 1954, on the ground that the Family Court failed to scrutinize the cruelty allegations on their own merit and rendered a “cryptic and perverse” judgment.

The Court emphatically ruled that a party’s absence or failure to file a written statement does not entitle the petitioner to an automatic decree, and restored the matter to the trial stage, reaffirming fundamental principles of fairness, due process, and judicial accountability in family law adjudication.

Ex Parte Decree of Divorce Based Solely on Husband’s Testimony

The marriage between the parties was solemnized on 18th September 2017 under the Special Marriage Act. Subsequently, the husband filed for divorce before the Family Court, Thane, alleging cruelty by the wife. The wife initially appeared but failed to file her written statement, and later remained absent, resulting in the court closing her evidence and arguments.

On 5th November 2024, the Family Court allowed the husband’s petition, holding that the wife had treated him with cruelty, basing its conclusion entirely on the unchallenged testimony of the husband, without discussing the evidence or providing reasoning.

Aggrieved, the wife approached the Bombay High Court, contending that the trial court had mechanically granted the divorce without any judicial application of mind.

Absence of a Party Does Not Dispense with Judicial Scrutiny

The High Court was faced with two pivotal legal issues:

1. Whether an ex parte decree of divorce under the Special Marriage Act can be sustained solely on the ground that the opposing party failed to file a written statement or lead evidence.

2. Whether the Family Court is obligated to evaluate the veracity of cruelty allegations even in uncontested proceedings.

The Court answered both in the affirmative, underscoring that "a decree cannot be automatic" merely because a party defaults in appearance.

Quoting the Supreme Court’s ruling in Balraj Taneja & Anr. v. Sunil Madan & Anr., (1999) 8 SCC 396, the Court observed: “Even if no written statement is filed, the trial court cannot automatically allow the petition and must assess the petitioner’s case on its own merits.”

Similarly, relying on Ramesh Chand v. Anil Panjwani, (2003) 7 SCC 350, the Bench reiterated:

“In a case which has proceeded ex parte, the court is not bound to frame issues under Order 14, but must scrutinize pleadings, consider evidence, and frame points for determination. A decree must be supported by admissible and relevant evidence.”

 “Family Court Failed to Apply Judicial Mind”

The Court noted that the Family Court had failed to assign any reasons for holding that cruelty was proved. The entire decree was founded on the absence of the wife and the unchallenged assertions of the husband, without any independent legal or factual analysis of the testimony.

“The Trial Court, without discussing the respondent-husband’s evidence or assessing its credibility, held that the wife treated him with cruelty only because his evidence was unchallenged. Such mechanical reasoning is legally unsustainable,” the Court held [Para 10-15].

Importantly, the High Court emphasized that the burden to prove cruelty lies on the petitioner, and the Court must satisfy itself on the material placed, even in absence of a contesting spouse.

“The Trial Court ignored the well-settled law that even where the respondent does not appear or contest, the Court must apply its mind to determine whether the petitioner has made out a case for divorce,” the Bench observed [Para 15].

Subsequent Remarriage Does Not Cure a Legally Flawed Decree

During the hearing, it was brought to the Court’s notice that the respondent-husband had remarried during the pendency of the appeal. The Court, however, made it clear that:

“Once it is found that the decree of divorce is perverse and contrary to law, the fact of subsequent remarriage cannot be a bar to setting aside such a decree. Rule of law must prevail,” the Bench ruled [Para 18].

Decree Set Aside, Trial Ordered Anew

Holding that the trial court’s decree was “unreasoned, cryptic, and contrary to settled law”, the High Court quashed the ex parte decree and remanded the matter back to the Family Court with the following directions:

• The wife is permitted to file her written statement within 30 days.

• The Family Court shall frame issues afresh, permit both parties to lead evidence and conduct cross-examination.

• The trial court must complete the proceedings within nine months.

Bombay High Court Reasserts Judicial Duty to Record Findings in Matrimonial Cases

This ruling serves as a firm reminder that courts cannot abdicate their duty of judicial scrutiny, especially in sensitive matrimonial matters. The mere absence of a spouse or the unchallenged nature of testimony does not relieve the trial court from its obligation to determine whether cruelty as a ground for divorce is proved on law and facts. The rule of law, procedural fairness, and judicial reasoning must remain paramount, even in ex parte scenarios.

Date of Decision: 01 October 2025