IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 PRESENT THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ M.F.A. NO.7155 OF 2015 (FC) BETWEEN:
GAYATHRI @ PREETHI W/O A.M. SAI PRASANNA D/O SHIVAIAH VIRUPAKSHAIAH AGED 26 YEARS C/O P.K.BHOOPANNA @ BHOOPAIAH DIRECTORATE OF HORTICULTURE DEPARTMENT QUARTERS BALGADI ROAD, KOPPA-577216 CHIKKAMAGALUR DISTRICT ... APPELLANT (BY SMT. S.B. REKHA, ADVOCATE FOR SRI. P.N. HARISH, ADVOCATE) AND:
A.M. SAI PRASANNA S/O A.M. UMAPATHI SWAMY AGED ABOUT 41 YEARS EMPLOYEE IN BAPUJI CO-OPERATIVE R/O NO.1803/53, ‘SAI DARSHAN’ ANJANEYA EXTENSION 16TH CROSS ROAD DAVANGERE-577001 ... RESPONDENT (BY SRI. R.M. PRAKSAH, ADVOCATE - ABSENT) THIS APPEAL IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 22.08.2015 PASSED IN M.C.NO.26/2015 ON THE FILE OF THE C/C PRINCIPAL JUDGE, FAMILY COURT, CHIKKAMAGALURU, ALLOWING THE PETITION FILED UNDER SECTION 9 OF HINDU MARRIAGE ACT, FOR RESTITUTION OF CONJUGAL RIGHTS.
***** THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, SURAJ GOVINDARAJ. J., DELIVERED THE FOLLOWING:
JUDGMENT 1. We have heard learned counsel for the appellant on 24.10.2019. There was no representation on behalf of the respondent. In order to give an opportunity to the respondent, the matter is listed today (25.10.2019). Once again, there is no representation on behalf of the respondent. In the circumstances, we have heard learned counsel for the appellant and proceeded to dispose of the appeal by the following judgment.
2. The appellant herein is the wife, while the respondent herein is the husband. The appellant was respondent in M.C.No.26/2015 before the Principal Judge, Family Court, Chickmangalur, which was a petition filed seeking restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for the sake of brevity). By the impugned judgment and decree dated 22.08.2015, the same has been allowed. Being aggrieved, the wife has preferred this appeal.
3. It is stated that the marriage of the appellant and the respondent was performed on 05.12.2011 at Shankar Samudaya Bhavan, Davangere and out of their wedlock, they have a male child who is presently in the care and custody of the appellant. The respondent in his petition has stated that after the birth of the child, the appellant was not looking after the respondent, in that she used to go to her parents’ house often and was not residing with the husband. He has further stated that the appellant was not discharging the duties of the wife, she has not come to his house and on the instigation of her uncle and aunt she had filed a petition under the Domestic Violence Act.
4. The respondent stated that he is the only son to his parents and he is ready and willing to lead marital life with the appellant and their child. However, the appellant had withdrawn from the company of the respondent and therefore, he filed a petition seeking for restitution of conjugal rights.
5. Initially, the petition was filed before the Family Court, Davangere and subsequently, as per the orders of this Court, the case was transferred to the Principal Judge, Family Court at Chickmagalur. The said Court issued court notices to both the parties. The respondent appeared through his advocate. Though notice was served on the appellant, she did not appear and hence, she was placed ex-parte.
6. On the matter being posted for evidence, the petitioner examined himself as PW-1 and got marked Exhibits P1 to P4. Since the respondent was placed ex- parte, there was no evidence led on behalf of the respondent. The trial court formulated the following points for its consideration:
“i. Whether the petitioner proves that after the solemnization of the marriage the respondent has without any reasonable excuse has withdrawn from the Society of the petitioner and thereby he is entitled for a decree of restitution of conjugal rights?
ii. What order?
The Trial Court answered the same as under:
Point No.1: In the Affirmative Point No.2: As per the final order”
7. The trial court noting that the appellant and the respondent are husband and wife and further noting that on account of the appellant not having contested the petition held there were no legal grounds as to why the prayer sought for by the respondent should not be granted, allowed the same and directed the appellant to join the respondent within sixty days from the date of judgment along with the child.
8. The said order having been passed on 22.08.2015, the present appeal has been filed on 21.09.2015 by the appellant stating that she was aware of the filing of the proceedings under Section 9 of the Act for restitution of conjugal rights in M.C.No.202/2014 before the Family Court, Davangere. Pursuant there to, she had filed a petition for transfer of the said proceedings from Family Court, Davangere to Family Court, Chickmagalur in C.P.No.214/2014 before this Court which came to be allowed on 01.12.2014. In furtherance thereof, M.C.No.202/2014 was transferred from the Family Court, Davangere to the Family Court, Chickmagalur with a direction to take up the case at Koppa in the event of sittings of the Family Court, Chickmagalur were held at Koppa.
9. The appellant misunderstood the order passed by this Court. She was under the belief that though she received notice stating that M.C.No.202/2014 had been transferred from Family Court, Davangere to Family Court, Chickmagalur, she was under an impression that she would be given a further notice as and when sittings happen at Koppa. The appellant having not received any such notice, she did not appear before the Family Court, Chickmagalur. Noting the absence of the appellant, the learned Principal Judge, Family Court proceeded with the matter and allowed the same directing the appellant to join the respondent within a period of sixty days from the date of judgment.
10. The appellant states that she was not aware of the judgment passed and it is only when her husband started asserting his rights on the basis of the impugned judgment, that the appellant contacted her advocate and came to know that on 22.08.2015 itself, the petition filed by the respondent had been allowed. The appellant immediately applied for a certified copy of the judgment on 11.09.2015 and has filed the present appeal.
11. The appellant has stated that on account of the ill-treatment of the respondent, she was forced to leave the matrimonial home and to reside in her aunt’s place, i.e., mother’s sister’s place at Koppa. The mother of the appellant being deceased and father presently working at Ranebennur was not able to provide accommodation and to take care of the appellant and her child.
12. The appellant in the present appeal contends that the trial court erred in allowing the petition of the respondent, more so, when the trial court had noticed that there was notice issued upon the complaint/petition filed by the appellant before the CDPO alleging domestic violence. She contends that the trial court should have considered the said complaint and the impact thereof and there being serious allegations of domestic violence, the trial court ought not to have ordered for restitution of conjugal rights.
13. The appellant contends that it is only on account of the aforestated confusion that she could not contest the matter. If she had known that the Family Court at Chickmagalur, would proceed with the matter and that there will be no sitting at Koppa, she would have contested the same. She further states that she has a good case on merits and the matter of cohabitation by way of restitution of conjugal rights is a serious one, which would have an adverse impact on her life. Hence, she requested for being heard in the matter and prays for setting aside the judgment dated 22.08.2015 passed by the Principal Judge, Family Court, Chickmagalur in M.C.No.26/2015 and further to dismiss the same.
14. On going through the records, the points that arise for our determination are:
i. Whether the judgment dated 22.08.2015 calls for any interference?
ii. What order?
15. We have perused the petition and the documents placed on record as also heard the counsel for the appellant. Though multiple opportunities have been provided to the respondent to appear, respondent has chosen not to contest the matter. Hence upon hearing the appellant, we have proceeded to dispose of the above appeal.
16. From the averments made in the Memorandum of Appeal as also from the impugned judgment, it is clear that the appellant was defending the proceedings filed by the respondent and it is on account of the said fact, this Court in C.P.No.214/2014 withdrew the file from the Family Court, Davangere and transferred it to the Family Court, Chickmagalur. This fact is also taken note of by the trial Court in Paragraph 3 of the impugned judgment.
17. The appellant having obtained a transfer of the case, though received summons from the Principal Judge, Family Court, Chickmagalur, she was under the impression that she would receive a further notice as and when sittings were held in Koppa since the order of this Court had categorically directed the trial Court to take up the case at Koppa if there are sittings of the Family Court, Chickmagalur at Koppa. From the records, it is not clear as to whether there were any sittings of the Family Court at Chickmagalur in Koppa or not. If the Family Court, Chickmagalur held sittings at Koppa, in that event, the proceedings in M.C.No.202/2014 should have been conducted at Koppa and not at Chickmagalur. The belief in that regard by the appellant appears to be reasonable and proper. More so, for the reason that the very purpose of filing C.P.No.214/2014 was to transfer the case to a place where the appellant could contest the same with least inconvenience, that being Koppa, where the appellant was residing.
18. The appellant has also contended that the trial Court ought not to have granted the relief of restitution of conjugal rights, more so, when the appellant was forced to come out from the matrimonial home on account of the cruel acts on the part of the respondent, which resulted in domestic violence on account of which the appellant had filed the proceedings against the respondent for such domestic violence.
19. We are persuaded the submission made on behalf of the appellant. When serious allegations of domestic violence are made, there could not have been an order of restitution of conjugal rights that too ex-parte. Even though the respondent did not contest the matter, the trial court in the impugned judgment at Paragraph 7 has observed that “Ex.P4 is the notice issued by the Women and Child Welfare Development Department. This notice shows that the respondent has filed the petition before the CDPO and CDPO has issued notice. Therefore, it is clear from Ex.P4 that the respondent has made allegations of domestic violence act against the petitioner and his parents.”
20. The trial court having noticed the above fact should have appreciated that the relationship between the appellant and the respondent are strained and there could not be an ex-parte direction issued to the appellant to join the company of the respondent and have a conjugal relationship with the respondent.
21. We are satisfied with the reasons furnished by the appellant for her non-appearance in M.C.No.202/2014. That apart, on perusal of the records of the court below, mainly the order sheet, we find that on 20.10.2014, the court has noted that the matter was stayed by this Court in C.P.No.214/2014 and thereafter, the matter was adjourned from time to time awaiting for orders. On 09.11.2015, there is a noting in the order sheet that the records were called for by this Court. There is a noting on 28.02.2015 that in C.P.No.214/2014, this Court had withdrawn the case from Family Court, Davangere and transferred it to the Family Court, Chickmagalur and on 10.02.2015, notice was ordered to both the parties and the matter was posted to 16.03.2015. On 16.03.2015, the respondent appeared and vakalath on his behalf was filed. There is also a noting on 16.03.2015 that notice to the appellant is unserved. However, the court posted the matter for appearance of the appellant. On 04.04.2015, there is no entry as regards the status of service of notice but since earlier it had been noted for appearance of the appellant, it was adjourned at the same stage to 20.04.2015. Again on 20.04.2015, it came to be adjourned to 03.06.2015 in the same stage and thereafter to 29.06.2015 for the same stage. When the appellant was called out and noting her absence, she was placed ex- parte.
22. From the above, it is clear that on 16.03.2015 notice to the appellant was unserved. Thereafter, no fresh notice has been issued to the respondent. Hence, question of appearance of the appellant before the court did not arise and the order passed on 29.06.2015 placing her ex- parte is contrary to the records of the trial court itself, there being no endorsement of service on the appellant 23. Though the records of the trial Court indicates that the appellant has not been served, the appellant has however in the Memorandum of appeal has stated that she was served with notice but was under the impression that she would receive a further notice as and when proceedings were to be held at Koppa and therefore, she did not appear.
24. In view of the above and more so, on account of the trial Court, having noticed but ignoring the proceedings for domestic violence, this is a fit case for remanding the matter to the Family Court, Chickmagalur.
25. In the result, the appeal is allowed. The impugned judgment and decree of the Family Court at Chickmagaluru, dated 22.08.2015 in M.C.No.26/2015 is set aside. The matter is remanded to the concerned Family Court so as to give an opportunity to the appellant herein to file her objections, cross-examine PW-1, let-in her evidence and advance arguments.
26. The concerned Family Court shall give sufficient opportunity to the parties and dispose of the petition in accordance with law.
27. This Court had directed that in the event of the Family Court, Chickmagalur sitting at Koppa, then the proceedings in M.C.No.26/2015 should be held at Koppa. In view of the said directions, on remand of this matter, the trial Court is directed to inform the appellant on 02.12.2019 as to whether there would be sitting held at Koppa or not and take appropriate steps in compliance with the directions issued in C.P.No.214/2014 as also in the present appeal.
28. Although the respondent is not before this Court despite being represented by counsel, since the appellant is present before this Court, the parties are directed to appear before the concerned Family Court on 02.12.2019 without expecting any separate or further notices from the said Court. In case the respondent herein does not appear before the concerned Family Court on the said date, then notice shall be issued to him.
29. The appellant is permitted to file her statement of objections, cross examine the respondent’s witness, let in her evidence and place her arguments before the trial court.
30. The concerned Family Court shall dispose of the petition in accordance with law.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE Prs*