IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.1907 OF 2018 (FC) BETWEEN:
MRS. LALITHA RATHNAM KYAVARS W/O. MR. SRINIVASALU KYAVARAS, D/O. MR. M.V. SATYANARAYANA RAO, AGED ABOUT 33 YEARS, RESIDING AT HIG-359, ROAD-10, BHEL TOWNSHIP RAMACHANDRAPURAM, HYDERABAD, ANDHRA PRADESH.
... APPELLANT (BY SRI S.V. GIRIDHAR, ADV., FOR GIRIDHAR & CO.) AND:
MR. SRINIVASALU KYAVARS S/O. MR. S. GOVINDU, AGED ABOUT 35 YEARS, RESIDING AT FLAT NO.213, VAIKUNTAM APARTMENTS, 4TH MAIN, 3RD CROSS, VAIKUNTAM LAYOUT, AECS LAYOUT ROAD, BANGALORE.
... RESPONDENT (BY SRI P.B. RAJU, ADV.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT, 1984, AGAINST THE ORDER DATED 1-2-2018 PASSED IN M.C. NO.2020 OF 2015 ON THE FILE OF THE IV ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(ia)(ib) OF THE HINDU MARRIAGE ACT, 1955.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ORDERS, THIS DAY, NATARAJAN, J., DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed to consider applications, namely I.A. No.2 of 2018 and I.A. No.1 of 2019, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is preferred by the appellant, being aggrieved by the decree of divorce granted by the IV Additional Principal Family Court, Bengaluru, in M.C. No.2020 of 2015 dated 1-2-2018.
3. Appellant was the respondent and respondent herein was the petitioner before the trial Court. For the sake of convenience, parties shall be referred to in terms of their status before the trial Court.
4. Case of the petitioner-husband before the trial Court is that he filed the divorce petition under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (for short, ‘Act’) on the ground of cruelty and desertion. In response to the notice issued by the Court below, wife had appeared through a counsel by obtaining permission of the Court under Section 13 of the Family Courts Act, 1984 and the case was posted for filing objections to the main petition, but respondent-wife did not file any objections to the main petition. Therefore, the trial Court proceeded to examine petitioner and in view of respondent remaining absent, the case was deferred for cross-examination and subsequently, cross-examination was taken as nil. By that time, petitioner had filed I.A. No.3 under Section 26 of Act for custody of the child, which came to be allowed-in-part and visitation rights were granted to the petitioner. However, respondent also filed another application under Section 24 of Act for granting interim maintenance and it was posted for arguments and petitioner filed objections and respondent also filed arguments. The trial Court posted the case for hearing on interlocutory application as well on main by taking evidence of respondent as nil and passed the judgment by decreeing the petition and granted divorce. Further, the trial Court awarded Rs.10,000/- as an interim maintenance during pendency of the petition. Being aggrieved by the judgment of divorce, respondent-wife filed this appeal on various grounds.
5. Learned counsel for the appellant has strenuously contended that the appellant is from Hyderabad. She had filed an application for maintenance and also filed written arguments. The trial Court, without passing any order on interim application and without providing any opportunity to the petitioner to cross-examine and to lead her evidence, passed the judgment and granted decree of divorce. He further contended that appellant thought that the trial Court will pass orders on interim application, but final judgment has been delivered without according proper opportunity to the appellant, who is staying in Hyderabad, unable to maintain herself and to visit Bengaluru. Therefore, she was not able to come to the Court and waited for granting maintenance. The trial Court ought to have given an opportunity to the appellant. Hence, he prayed for setting aside the decree and prayed for remitting back the matter to the trial Court for fresh consideration by providing opportunity for the appellant to cross-examine PW.1 and also to lead evidence.
6. Learned counsel for the respondent though argued and supported the judgment of the trial Court that the trial Court accorded proper opportunity, but appellant has not chosen to appear before the trial Court. Therefore, there is no illegality committed by the trial Court in passing the judgment. However, learned counsel has agreed for giving an opportunity by remanding the matter back and by giving timeframe to dispose of the matter.
7. In view of the submissions made by learned counsel on both sides, admittedly, during pendency of the case before the trial Court, appellant filed an interim application and written arguments. The trial Court, instead of passing orders on the interlocutory application for maintenance, adjourned for arguments on interlocutory application of petitioner and for respondent’s evidence. Instead of hearing the arguments of petitioner’s counsel, the trial Court has taken respondent’s evidence as nil and again adjourned for hearing on I.A. under Section 24 of Act and on merits. Again, the trial Court has adjourned the matter and later, it has observed that there was no representation on behalf of respondent and posted the case for judgment. Accordingly, the judgment was delivered.
8. Upon hearing the arguments of respective counsel and on perusal of the records, it indicates that the trial Court instead of passing orders on interlocutory application, it posted for evidence of respondent. In spite of filing written arguments, the trial Court was required to hear the arguments of petitioner’s counsel on interlocutory application and instead of posting the case for orders, the trial Court posted the case for respondent’s evidence and respondent’s evidence was taken as nil. It indicates that there has been no proper opportunity given to appellant herein (respondent before the trial Court) for leading her evidence. Apart from that, the trial Court ought to have given an opportunity to appellant herein as PW.1 was not cross-examined by her as she was staying in Hyderabad and had to come from Hyderabad to attend the proceedings and without there being any order of maintenance, it may have been difficult for her to attend to the Court proceedings. This above aspect has not been considered by the trial Court. In matrimonial disputes, the Court is required to give opportunities to both the parties in the proceedings. Therefore, we deem fit and proper to remit the matter by setting aside the decree of divorce granted by the trial Court, without expressing any opinion on merits of the case.
9. In the result, the appeal is disposed off. The judgment and decree by the IV Additional Principal Judge, Family Court, Bengaluru, dated 1-2-2018 passed in M.C. No.2020 of 2015 is set aside.
10. The matter is remanded to the said Court for a fresh consideration by permitting the appellant herein to cross-examine the respondent and also to let in evidence, if any.
11. Since the petition is of the year 2015 and the matter is being remanded, both parties are directed to co- operate with the concerned Family Court for expeditious disposal of the case. They shall appear before the Family Court on 17-6-2019, without expecting any separate notices from the said Court. The said case shall be disposed off within a period of six months from 17-6-2019.
12. Parties to bear their respective costs.
In view of disposal of the appeal, pending applications stand disposed.
Sd/- JUDGE Kvk Sd/- JUDGE BVNJ & KNJ :
21.06.2019 M.F.A. No.1907/2018 ORDER ON ‘BEING SPOKEN TO’ By judgment dated 28.05.2019, the matter is remanded to the Family Court directing parties to appear before the said Court on 17.06.2019 without accepting any separate notice from the said Court.
It is stated that both the parties did not appear before the said Court on the said date as the certified copy of this judgment was unavailable.
In the circumstances, learned counsel for the appellant submits that a fresh date may be given so that both the parties would appear on the said date.
Accordingly, both the parties are directed to appear before the Family Court on 01.07.2019.
The said case shall be disposed of within six months from 01.07.2019.
SD/- JUDGE SD/- JUDGE SJK