IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 01ST DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR M.F.A. No.3792/2018 (FC) BETWEEN:
LAKSHMI W/O. S. PRASHANTH, D/O. BABU TUKOL, AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O: “PADMAVATHI NILAYA”
PLOT NO. 213, HUBBALLI ROAD, KESHAVA NAGAR, GADAG TALUK & DISTRICT – GADAG. ... APPELLANT (BY SRI S.K. MARAD AND SRI H.N. GULAREDDI, ADVOCATES) AND:
S. PRASHANTH S/O. LATE Y.P. SHYLENDRAKUMAR, AGE: 43 YEARS, OCC: GOVERNMENT EMPLOYEE, R/O. NO. 390, 14TH MAIN, SARASWATHIPURAM, MYSURU, TALUK & DISTRSICT – MYSURU. ... RESPONDENT (BY SRI VEERESH H., ADVOCATE) THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 04.10.2017 PASSED ON MC NO.706/2016 ON THE FILE OF THE 1ST ADDITIONAL PRINCIPAL FAMILY COURT, MYSURU, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(ia) OF THE HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The appellant is the wife, while the respondent is husband. Respondent/husband has filed M.C.No.706/2016 before the I Addl. Prl. Judge, Family Court at Mysuru (hereinafter referred to as “the Family Court”), seeking the relief of dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955. By a judgment and decree dated 04/10/2017, the Trial Court allowed the petition and the marriage between the parties has been dissolved by a decree of divorce. Being aggrieved by the said judgment and decree, the wife has filed this appeal.
3. We have heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.
4. Appellant’s counsel contended that the appellant being the respondent before the Family Court was living at Keshavanagar, Gadag. That there was no service of notice of the petition by the Family Court at Mysuru. She remained absent before the Family Court on account of non-service of notice. That even in the impugned judgment, it has been stated that substituted service was taken by way of paper publication in Kannada Prabha daily newspaper, Gadag edition, which the appellant did not notice. Consequently, she did not appear before the Family Court, as a result she could not file her statement of objections. Hence, she was placed ex parte and the Family Court and the Family Court proceeded to grant the decree of divorce without giving an opportunity to the appellant to contest the petition. He contended that there is violation of principles of natural justice and therefore, the appeal may be allowed and the matter may be remanded to the Family Court for a fresh adjudication after giving an opportunity to the appellant to file her statement of objections.
5. Per contra, learned counsel for the respondent supported the impugned judgment and decree and contended that the respondent cannot be put to difficulty on account of non-appearance of the appellant before the Family Court. That the appellant was served through substituted service, but she did not appear. That the appellant is procrastinating the matter, which is causing difficulty to the respondent/husband who has succeeded before the Family Court at Mysuru. He therefore, submitted that the appeal may be dismissed and the judgment and decree of the Family Court may be confirmed.
6. Having heard learned counsel for the respective parties, the following points would arise for reconsideration:
(i) Whether the judgment and decree of the Family Court calls for any interference in this appeal?
(ii) What order?
7. The fact is that the respondent/husband had filed a petition under Section 13(1)(ia) of the Act (M.C.No.706/2016) before the I Addl. Prl. Family Court at Mysuru, seeking dissolution of marriage is not in dispute. Pursuant to the notice issued by the Family Court, the appellant herein did not appear. The grievance of the appellant is that she was not served with the notice of the Family Court. In fact on the basis of newspaper publication taken out by way of substituted service, the Family Court held that there was sufficiency of service and she was placed ex parte. However, the fact remains that the appellant did not appear before the Family Court and she did not file her statement of objections contesting the divorce petition. Therefore, the impugned judgment and decree is an ex parte one without any contest by the appellant herein. Without going into the question as to whether the appellant was indeed served notice by way of substituted service, in the sense as to whether she was aware of the notification taken out by the respondent in the Kannda Prabha daily newspaper, we find that this is a case where the decree of divorce has been passed against the appellant without giving her the opportunity to contest the petition filed by the respondent/husband. Thus, there is violation of principles of natural justice in the instant case. Therefore, on that short ground alone, the impugned judgment and decree of the Family Court is set aside. M.C.No.706/2016 is restored on the file of the I Addl. Prl. Judge, Family Court at Mysusu, for a fresh adjudication after giving an opportunity to the appellant to file her statement of objections to the divorce petition filed by the respondent/husband. Since the parties are represented by their respective counsel, they are directed to appear before the concerned Family Court on 16/09/2019 without expecting any separate notice from the said Court. On the said date or any other date stipulated by the Family Court, she shall file her statement of objections to the petition seeking divorce filed by the respondent/husband.
8. The concerned Family Court shall dispose of M.C.No.706/2016 in accordance with law.
9. The appeal is allowed and disposed of in the aforesaid terms.
Parties to bear their respective costs.
Office to dispatch the LCR to the concerned Family Court forthwith.
Sd/- JUDGE Sd/- JUDGE S*