IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL No.2908 OF 2019 (FC) BETWEEN:
SMT.BHAGYALAKSHMI B.S. W/O VASANTHAKUMAR G.U. D/O SHANKARALINGAIAH.N AGED 41 YEARS R/AT NO.1416, 1ST D MAIN ROAD 12TH CROSS, KENGERI SATELLITE TOWN BANGALORE-560 060 ... APPELLANT (BY SRI.R.PRAMOD, ADV.,) AND:
VASANTHAKUMAR G.U S/O LATE G.N.UGRAIAH AGED 40 YEARS NARAYANA BUILDING 1ST FLOOR, 3RD CROSS GANDHINAGARA, YELAHANKA BANGALORE-560 064 ... RESPONDENT (BY MS.KALYANI AGARWAL, FOR MR.SHARATH GOWDA G.B. FOR C/R) THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DTD:28.01.2019 PASSED ON MC NO.2725/2016 ON THE FILE OF THE VI ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING PETITION FILED UNDER SECTION 13(1) (ia) & (ib) OF HINDU MARRIAGE ACT AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, NARENDRA PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. For the sake of convenience, the parties shall be referred to in terms of their status before the Family Court.
3. The respondent in M.C.No.2725/2016 has filed this appeal, being aggrieved by the order passed by the VI Additional Principal Judge, Family Court, Bangalore, dated 28.01.2019. The petitioner – husband filed M.C.No.2725/2016, seeking dissolution of marriage with the appellant – wife, which was solemnized on 18.06.2016 at Sri Basaveshwara Kalyana Mantapa, Turuvekere, Tumkur District.
4. The brief facts of the case, according to petitioner is that, after marriage, both of them were living in the petitioner’s house at Turuvekere and thereafter at Yelahanka New Town, Bengaluru. Mother of the petitioner was residing with the petitioner as he was the only son. Respondent was showing indifference towards the family members of the petitioner, particularly, petitioner’s mother, who is a diabetic, arthritic and a BP patient. The respondent opposed the petitioner bringing his mother with them to Bengaluru. She had even gone to the extent of threatening the petitioner of consuming sleeping pills. The respondent conceived, but she was keen to terminate her pregnancy for which petitioner opposed and she started picking up quarrels with him and used to intimidate the petitioner. She used to shout in a vulgar and foul language and she also used to assault him physically by throwing at him with whatever things she could lay her hands on. She used to be more aggressive when relatives come to their place. She always used to roam around with her friends, ignoring the child and the mother of the petitioner, who was aged. She also used to take money from the petitioner and invest it in some chit funds and also wasted money.
5. On 07.05.2009, when petitioner’s two years old son went missing due to the careless attitude of the respondent, petitioner admonished the respondent for her carelessness, she started fasting and did not eat food properly for two days with the intention of torturing the petitioner. On 10.05.2009, she complained of stomach ache and petitioner immediately took her to Shushrusha Hospital, Yelahanka, Bengaluru. Doctor advised to get her admitted for a speedy recovery. When treatment started, respondent pretended to have taken the sleeping tablets, for which hospital authorities informed the jurisdictional police. The jurisdictional police came and had taken the statement of the respondent before the hospital authorities. After petitioner and his mother reached the hospital, police said that there were no allegations against the petitioner and his mother. The respondent intentionally planned and tried to fix the petitioner and his mother with a false case. Relatives of the respondent visited the hospital and at the instigation of the respondent they manipulated the version of the respondent about the incident and severely beat up the petitioner near the hospital. Without informing the petitioner, respondent’s brother and her parents forcibly discharged the respondent from the hospital and had taken her to Yelahanka police station and has lodged a false complaint against the petitioner and his mother alleging ill treatment, which has been registered as C.Misc.Nos.398/2009 and 399/2009. Immediately, police came to the house of the petitioner when petitioner was not at home as he was appearing in an examination. Police took his aged mother and his two year old child to the police station. At the police station, father of the respondent pounced on petitioner’s mother to strangulate her and he tried to kill her. On the same day, respondent went to her parental house taking the child, without informing the petitioner. She also gave a false complaint to the CDPO, Tiptur, Tumkur under the Protection of Women from Domestic Violence Act, 2005 against the petitioner.
6. On 25.09.2009, respondent suddenly went to petitioner’s house along with her sister and other unknown persons and they forcibly took away the movables from the petitioner’s house. Petitioner immediately called the Sub-Inspector of Police, Yelahanka Police station and sought protection. The same has been registered in C.Misc.No.901/2009 of Yelahanka Police station. She has taken the passbook and also jewellery and ornaments from his house. She also told their neighbours that she would come back to the matrimonial house and she would file false case against the petitioner and his mother and would make them suffer. Respondent’s brother is married to sister of petitioner. Respondent and her brother had quarreled with her. She came back to petitioner’s house with her two children. Many a times respondent used to abuse the mother of the petitioner. When petitioner had gone to office, respondent had warned and threatened the mother of the petitioner to insist sister of the petitioner to take back all the cases which were against respondent’s brother and not to give any evidence against him which might put him in severe trouble. Because of all these reasons, petitioner was constrained to file a divorce petition.
7. Even after service of notice through RPAD respondent did not appear. Hence, she was placed ex parte.
8. Based on the pleadings, the Trial Court framed the following issues for its consideration:
“1. Whether the petitioner proves that he was subjected to cruelty at the hands of the respondent?
2. Whether the petitioner proves that the respondent has deserted him immediately two years preceding the presentation of the petition?
3. What order?”
9. In support of his case, petitioner examined himself as PW1 and examined two other witnesses as PWs. 2 and 3. He produced forty five documents which were marked as Exs. P1 to P45. After hearing learned counsel for the petitioner the Family Court answered issue Nos. 1 and 2 in the affirmative and allowed the petition, granting a decree of divorce to the petitioner by dissolving his marriage with the respondent. Being aggrieved by the ex parte order of the Family Court, appellant herein, being the wife, has preferred this appeal.
10. We have heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.
11. Appellant’s counsel contended that the order of the Family Court is one sided. It is an ex parte decree, as appellant herein did not appear in the matter. He further contended that on 19.02.2018 the appellant herein had in fact appeared before the Family Court and filed I.A.No.V under Order IX Rule 7 of Code of Civil Procedure, 1908 seeking setting aside of the ex-parte order dated 24.08.2016. She had also filed statement of objections to the main petition. But the Family Court dismissed the said application on 27.09.2018 on the ground that notice of the petition filed by the husband was served on her on 24.08.2016 itself and she did not appear before the Court and it posted the matter for judgment. There has been no contest in the case by the respondent herein. Therefore, the ex parte judgment of the Family Court is in violation of the principles of natural justice as the appellant herein had no opportunity to put forth her case before the Family Court. Therefore, this Court may set aside the order of the Family Court and remand the matter so as to enable the appellant herein to cross-examine the respondent herein and also to let in her evidence.
12. Per contra, learned counsel for the respondent supported the judgment of the Family Court and contended that the respondent herein cannot be prejudiced on account of non-participation of the appellant herein before the Family Court. He contended that the appellant herein had been served with the notice but she did not choose to appear in the matter. It was the duty of the appellant herein to contest the matter. But the same not having been done, cannot cause any prejudice or hardship to the respondent herein. He submitted that the Family Court has examined the evidence on record and has rightly allowed the petition by granting a decree of divorce and that there is no merit in the appeal.
13. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(1) Whether the order of the Family Court would call for any interference in the matter?
(2) What order?
14. The detailed narration of facts would not call for any reiteration except highlighting the fact that the impugned order is virtually an ex parte one. We note that on 19.02.2018, the appellant herein had appeared before the Family Court and had filed I.A. No.V under Order IX Rule 7 of Code of Civil Procedure, 1908 seeking setting aside of the order placing her exparte. She has also filed statement of objections to the main petition. However, the said application was dismissed on 27.09.2018 on the ground that notice of the petition filed by the husband was served on her on 24.08.2016 itself and that she had not appeared before the Court. Hence, the matter was posted for judgment.
15. Learned counsel for the appellant, however, has submitted that appellant herein could not appear before the Family Court due to bonafide reasons i.e. on account of illness of her mother and that she had to take care of her mother. The fact remains that the impugned judgment and decree is an ex parte one, without the appellant herein having contested the petition for divorce, which has ultimately resulted in dissolution of marriage by a decree of divorce, passed ex parte. In the circumstance, we find that the appellant herein ought to be given an opportunity to contest the petition filed by the respondent seeking dissolution of marriage by a decree of divorce. Since the statement of objections filed by the appellant herein is already on record, the same shall be taken into consideration by the Family Court.
16. In the result, the impugned judgment and decree of the Family Court is set aside. The matter is remanded to the Family Court for re-consideration and fresh disposal. Since the parties are represented by their parties, they shall appear before the Family Court on 10.06.2019 without expecting any separate notices from the said Court. Since the petition is of the year 2016, parties are directed to co-operate with the Family Court for expeditious disposal of the petition and the Family Court shall dispose of the petition on or before 31.12.2019.
Parties to bear their respective costs.
In view of disposal of the appeal, I.A.1/2019 stands disposed off.
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Sd/- JUDGE