IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 31st DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD MISCELENEOUS FIRST APPEAL NO. 1851 OF 2015 (FC) BETWEEN:
SMT. AMBIKA R WIFE OF SRI. KIRAN KUMAR R. DAUGHTER OF V. RAJENDRAN AGED ABOUT 29 YEARS RESIDING AT NO.448, 7TH ‘B’ MAIN, 1ST BLOCK, HRBR LAYOUT KALYAN NAGAR,BENGALURU – 560 043.
…APPELLANT (BY SRI. MUNISWAMY GOWDA S. G., ADVOCATE) AND:
SRI. KIRAN KUMAR. R SON OF RATHNA KUMAR. J AGED ABOUT 35 YEARS RESIDING AT NO.203/28 SIVASAKTHI NILAYAM 2ND FLOOR, 7TH MAIN ROAD 3RD CROSS,PRAKSHNAGAR BENGALURU – 560 021.
(BY SRI. K.R. SRINIVASAN, ADVOCATE) ... RESPONDENT THIS MISCELENEOUS FIRST APPEAL FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 18.02.2015 PASSED ON MC NO.993 OF 2013 ON THE FILE OF THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 13(1) (ia) OF HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, B. M. SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is by the wife who is aggrieved by the judgment dated 18.2.2015 in M.C.No.993 of 2013 on the file of the I Additional Principal Judge, Family Court, Bengaluru (referred to as the ‘Family Court Judge’, for short). The appellant’s marriage with the respondent, solemnized on 10.7.2011, was dissolved by the impugned judgment and decree dated 18.2.2015.
2. The respondent – husband filed a petition under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, for dissolution of the marriage contending that he was subjected to cruelty by the appellant. The respondent alleged that the appellant was selfish, adamant and arrogant not only with him but also with his parents. The appellant, who was employed as on the date of the marriage continued to work, without disclosing either the nature of employment or her salary. This was contrary to what was agreed before the marriage. The respondent was particular that he wanted to be married to a home maker and therefore both the appellant and her parents had assured the respondent, and his parents, that the appellant shall quit her job after marriage. The appellant would regularly, and without any reasonable cause, stay back at her parents’ place under the guise of getting medical assistance for her Asthama affliction. When the appellant left the matrimonial home on 5.1.2012 without informing the respondent or his parents, the respondent issued a legal notice. The appellant responded to the legal notice by lodging a complaint with the Family Counselling Centre, Bengaluru. The appellant and the respondent were advised by the counsellors. The respondent filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. The respondent withdrew the petition on 18.2.2013 as he was convinced that the appellant was not interested in joining him in matrimony. The respondent therefore filed the present petition for dissolution of marriage.
3. The appellant, who had entered appearance on service of notice, filed objection statement refuting the allegations against her by the respondent. The appellant alleged that the respondent was mostly indifferent to her. The respondent preferred to spend long hours over telephone talking to girls. The appellant would wake up early in the morning and attend to all the household work. However, she suffered humiliation and difficulties because the mother-in-law practiced black magic. The respondent and his family members humiliated the appellant when she was in the family way. The respondent is given to vices, and the appellant even chanced upon abusive substances at home that the respondent had managed to hide. The appellant lost her job because of the harassment and humiliation she suffered at home. The appellant was not provided for when she lost her employment. Therefore, the appellant had no choice but to leave the matrimonial home on 5.1.2012. The effort by the appellant’s family members for reconciliation did not yield results because the respondent and his family members were absent. The appellant also adverted to the different proceedings initiated by her, including under the provisions of the Protection of Women from Domestic Violence Act, 2005.
4. The respondent examined himself in support of the petition and he also marked exhibits P.1 to P.7. The respondent was cross-examined on behalf of the appellant. The appellant filed an affidavit by way of evidence in chief examination, but thereafter, did not tender herself for cross-examination.
5. The learned Family Court Judge, inter alia on the ground that though the appellant had resisted the respondent’s allegations controverting the same and set up her own defense, did not offer herself for cross- examination. Her failure to offer herself for cross- examination disclosed that the appellant is not interested in prosecuting the proceedings. When the matter was posted for judgment, the appellant filed an application for reopening of the case and to file objections. This application was allowed and the appellant was permitted to file objection statement. Though multiple opportunities were given to the appellant, she had not chosen to effectively prosecute her case. The aforesaid circumstances in the opinion of the learned Family Court Judge established that the appellant was not interested in prosecuting the case. The marriage between the appellant and the respondent was dissolved accepting the respondent’s evidence placed on the ground that the same had remained uncontroverted.
6. The learned counsel for the appellant arguing in support of the appeal, and in an effort to justify the appellant’s failure to offer herself for cross- examination, submitted that the appellant was bereaved because of the demise of her father and she was also handicapped inasmuch as she had been injured in a road traffic accident. It is only because of these bona fide circumstances the appellant was unable to tender herself for cross-examination. The failure is neither deliberate nor intentional. As such, an application was filed before the learned Family Court Judge on 18.2.2015 when the matter was listed for pronouncement of the impugned judgement. The learned Family Court Judge rejected the application and pronounced the impugned judgment.
7. The learned counsel for the respondent argued in support of the impugned judgment. He contended that the appellant had multiple opportunities. The petition was listed for judgment even on an earlier occasion, but the appellant’s application for reopening of the case and filing of objection statement was allowed affording a reasonable opportunity to the appellant to refute the respondent’s case and also establish her case. Nevertheless, the appellant had remained negligent, and as such, the appellant cannot now contend that she was denied fair opportunity.
8. In view of the rival contentions, the questions that arise for consideration are:
“Whether the appellant is able to show sufficient case for her absence on the day when the petition was listed for appellant’s cross examination, and whether any interference is called for with the impugned judgment and decree in this appeal”.
9. The appellant has contested the respondent’s petition for divorce filing her objection statement refuting the allegations against her. She has specifically contended that the marriage cannot be dissolved on the ground that she was cruel to the respondent, and that she was compelled to leave the matrimonial home in the circumstances narrated by her. The appellant has participated in the mediation exercise, and the respondent has also been cross- examined on her behalf. Further, the appellant has also filed her affidavit by way of chief examination. But she has not tendered or offered herself for cross- examination. The appellant has not been completely negligent in the conduct of the proceedings. Admittedly, she filed an application for permission to tender herself for cross-examination when the matter was listed for judgment.
10. The appellant has reiterated before this Court that she was bereaved by the demise of her father, and she being the only daughter was under shock and took some time to come out of shock. Therefore, she had not filed her objection statement. However, she filed necessary application and she was permitted to file objection statement and cross-examine the respondent. Thereafter, she suffered injuries in a road accident. She was visiting the doctor on the day when the matter was set down for her cross- examination and it is only for that reason that she could not be present. However, she made an application before the judgment was pronounced. These circumstances, which are not seriously disputed, would constitute sufficient cause for the appellant’s absence when the petition was listed for her cross examination, and also dispel doubts about any deliberate negligence by her. Further, in the absence of evidence from the appellant, and in the totality of the facts and circumstance of this case, the material on record would not be sufficient for complete adjudication of the lis between the parties to the proceedings. Therefore, this Court is of the considered opinion that it would be just and reasonable to set aside the impugned judgment and decree and remand the matter to the Family Court to afford an opportunity to the appellant to tender herself for examination and further opportunity to both the parties to lead additional evidence. Thereafter, the Family Court to decide the case on merits within certain time frame. As such, the questions formulated for consideration are answered in the affirmative and the following order is made:
(a) The appeal is allowed in part. The impugned judgment and decree dated 18.2.2015 in MC No.993 of 2013 on the file of the I Additional Principal Judge, Family court, Bengaluru, is set aside.
(b) The petition in MC No.993 of 2013 is restored to the board of the I Additional Principal Judge, Family Court, Bengaluru for proceeding with the case giving the appellant an opportunity to tender herself for cross-examination as well as further opportunity to both the appellant and respondent to lead any further evidence.
(c) The appellant and the respondent, without any further notice shall appear before the Family Court Judge on 28.02.2019.
(d) The Family Court is directed to dispose off the petition in MC No.993 of 2013 as expeditiously as possible, but not later than four months from 30.06.2019.
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JUDGE JUDGE nv