IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD 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.6659 OF 2014 (FC) BETWEEN:
SMT. MEGHA ACHARYYA AGED ABOUT 29 YEARS W/O PREETHAM SARKHEL D/O TAPANKUMAR ACHARYYA RESIDING AT ‘KRISHNA TARUCHAYA APARTMENTS’, 24/11 K.J. SANYAL ROAD MALDA-732101 POST MALDA DISTRICT WEST BENGAL. ... APPELLANT (BY SRI.V. RAVIPRAKASH, ADVOCATE) AND:
SRI. PREETHAM SARKHEL AGED ABOUT 33 YEARS S/O BADAL SARKHEL RESIDING AT NO.240 7TH ‘B’ MAIN, H.R.B.R. LAYOUT 1ST BLOCK, KALYANAGAR BANGALORE-560043 ... RESPONDENT (BY SMT. ASHA MERCY.S, ADVOCATE FOR SRI. KIRAN S ROZARIO, ADVOCATE FOR C/R) THIS APPEAL IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 18.01.2014 PASSED IN MC NO.3445/2013 ON THE FILE OF THE VI ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(ia) OF HINDU MARRIAGE ACT.
THIS APPEAL COMING FOR ORDERS, THIS DAY, SURAJ GOVINDARAJ. J., DELIVERED THE FOLLOWING:
J U D G M E N T 1. Though the matter has come up for orders, with the consent of both parties it is heard finally and disposed of by this judgment.
2. M.C.No.3445/2013 was filed by the husband-petitioner under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’ for the sake of brevity) seeking for dissolution of his marriage with the wife-respondent solemnized on 04.12.2011 held at Ganga Rayad Lodge, Nazrul Serai, Malda, West Bengal and later registered before the Registrar of Marriage, District Sub-Registrar, Jalpaiguri, West Bengal dated 23.12.2011.
3. The said petition came to be allowed by the VI Addl.
Principal Judge, Family Court at Bengaluru (‘trial Court’ for brevity) on 18.01.2014. Aggrieved by the same, the wife-respondent has filed the present appeal.
4. Parties are referred to as per their ranking before the trial Court for the sake of convenience.
5. The facts in brief are as under:
5.1 M.C.No.3445/2013 was filed by the husband- petitioner stating that he and wife-respondent got married as per their customs and their marriage was registered before the Registrar of Marriage, District Sub-Registrar, Jalpaiguri, West Bengal at Sl.No.94/11 on 23.12.2011.
5.2 He has stated that after marriage, he and his wife had resided together at various places and lastly resided at Kalyan Nagar, Bengaluru. He alleged that the wife-respondent had committed several acts of cruelty and hence, on the basis of those allegations, sought for dissolution of marriage.
5.3 On filing of the petition, summons was issued by Registered Post Acknowledgement Due. Though summons by RPAD was duly served, respondent remained absent. She was placed ex-parte and case was posted for evidence.
5.4 The petitioner got himself examined as PW-1 and his father as PW-2 and also examined two other witnesses as PWs 3 and 4 and got marked Exhibits –P1 to P14.
5.5 The trial Court formulated the following issues:
i) Whether the petitioner /husband proves that subsequent to marriage respondent/wife has practiced cruelty upon him?
ii) To what order?
After consideration, answered them as under:
Point No.1: In the Affirmative. Point No.2: As per the order.
5.6 The trial Court taking note of the fact that respondent was placed ex-parte, heard arguments on behalf of the petitioner, posted the matter for Judgment and pronounced the Judgment on 18.01.2014 dissolving the marriage between the husband-petitioner and respondent-wife.
5.7 In effect, by way of the above Judgment, the trial Court has accepted the case of the husband-petitioner, more so, when there was no objection for the same nor was there any counter-view presented before it.
6. The wife-respondent on coming to know of the said Judgment of dissolution has filed the present appeal contending that :
6.1 Husband-petitioner had suppressed several facts and had, in fact, made false statements.
6.2 Wife-respondent alleged cruelty, ill treatment, mental and physical torture, etc. against the husband-petitioner.
6.3 She had stated that she had filed a case in EBPCS No.1032/2013 dated 01.12.2013 for the offences punishable under Sections 498-A, 323, 325, 327, 328 and 109 of India Penal Code, as also another case under Section 125 of the Crl.P.C. in M.C.No.1434/2013, both before the Hon’ble Judicial Magistrate-II Court, Malda.
6.4 The Wife-respondent admited having received the summons. She stated that since she did not know anyone in Bengaluru, she could not immediately come to Bengaluru to make arrangements to engage an advocate, but she had on 21.11.2013 sent an adjournment application through her counsel at Malda by Registered Post Acknowledgement Due. She stated that the said application is part of the records before the trial Court. However, the same was not considered by the Trial Court and impugned Judgment and decree was passed against her. This fact came to her knowledge much later when she came to Bengaluru and enquired as to what had happened to the summons.
6.5 She thereafter filed a petition under Order IX Rule 13 of CPC which came to be numbered as Misc.Petition No.53/2014 seeking for setting aside the ex-parte Judgement and decree dated 18.01.2014. The same objected to by the husband-petitioner on the ground of maintainability. Hence, she withdrew the said petition with liberty to approach this Court. It is, thereafter, the present appeal was filed.
7. On filing of the Appeals, notice was issued to the husband-petitioner, who appeared in response thereof and filed his objection to the appeal contending that:
7.1 The wife-respondent had filed various criminal cases against him and his family members, and the present appeal was filed only with a malafide intent to harass him.
7.2 The wife-respondent had wantonly chosen not to appear before the trial Court and now the present appeal has been filed to delay the matter.
7.3 He has produced copies of the complaints filed by the wife-respondent in Malda, West Bengal to contend that wife-respondent has been making allegations against him.
7.4 He has produced print outs of a Matrimonial Site viz., Matrimonial.com wherein he has stated that wife-respondent has put up a profile inviting proposals for her marriage in furtherance of the divorce.
7.5 Hence, on the above grounds, the husband- petitioner contends that the wife-respondent is not interested in cohabiting with him and seeks for dismissal of the appeal.
8. The wife-respondent has filed a further affidavit on 18.3.2017 stating that the allegations made in the divorce petition filed in M.C No.3445/2013 by the husband-petitioner are completely false and just because she was unable to appear and contest the matter, false and baseless allegations made by the husband-petitioner have been accepted by the trial Court and those findings have become final. The wife- respondent contends that she was unable to prosecute her claim for maintenance/alimony, etc. and it is for this reason that she seeks for setting aside the decree of divorce on the ground of acts of cruelty falsely attributed to her.
9. Lower Court Records were called for and have been perused by us; we have also heard the learned counsel for both sides, the points that arise for our consideration are:
i) Whether non-appearance by the wife-respondent was bonafide;
ii) Whether on account of such non- appearance by respondent-wife, there is any violation of principles of natural justice in the trial Court dismissing the matter?
iii) What order?
10. The order sheet maintained in M.C.No.3445/2013 discloses that the case was filed by husband-petitioner on 19.8.2013 and on that date, the trial Court had ordered for service of notice returnable by 21.09.2013. On 21.09.2013, the Presiding Officer was on Earned leave and the matter was adjourned to 1.10.2013. On 1.10.2013, the trial Court, observing that the wife-respondent was duly served and was absent, placed her ex-parte and posted the matter for evidence of the petitioner-husband. On 22.10.2013, the petitioner led his evidence and finally on 18.1.2014, the petition came to be allowed.
11. A perusal of the records would disclose that the application sent by the wife-respondent from Malda, West Bengal is found on the record of the trial Court, wherein she had clearly stated that she had received summons, however, since she had filed two cases against the petitioner-husband within the jurisdiction of Malda District, West Bengal, the petitioner took advantage of the same and filed the matrimonial case in Bengaluru, Karnataka. The wife-respondent had categorically intimated her intention to contest the matter and she sought an adjournment for a period of three months. That the said application had been sent by the wife-respondent through RPAD and received by the trial Court on 25.11.2013. The same was not put up on the file of the trial Court, resulting in the trial Court proceeding ahead by placing the wife-
respondent ex-parte, recording of evidence, as also passing the final Judgment.
12. Having given our considered thought to the contentions urged by both parties, in our opinion, the fact of certain allegations being the foundation of the Judgment in M.C.No.3445/2013, which would obviously affect the interest of the wife-respondent, have to be taken into consideration.
13. In the event, the wife-respondent had contested M.C.No.3445/2013 and placed the evidence and documents on record, the trial Court would probably not have come to the conclusion that the allegations of cruelty made by the husband-petitioner are proved. The wife-respondent has acted bonafide though not with necessary alacrity in contesting the matter. Admittedly, she is living in Malda, West Bengal and fending for herself and she could not come to Bengaluru to contest the matter. She however, with her limited resources had been able to send an application to the trial Court seeking for an adjournment for a period of three months and was waiting for a written communication from the trial Court. The trial Court proceeded on placing her ex- parte recorded evidence of the husband and has passed the ex-parte Judgment of dissolving the marriage. As a result, it has violated the principles of natural justice and also the rights of wife-respondent by not being given an appropriate and adequate opportunity to defend the allegations made against her.
14. In the result, the appeal is allowed. The Judgment and decree of the VI Addl. Principal Judge Family Court, Bengaluru dated 18.01.2014 passed in M.C.No.3445/2013 is set-aside. M.C.No.3445/2013 is remanded to the trial Court and the matter is restored on to the file of the trial Court for fresh consideration from the stage of cross-examination of PW-1; respondent herein is at liberty to let-in additional evidence; the appellant on cross-examination of the witnesses of the respondent is at liberty to let in her evidence in the matter and thereafter, the trial Court shall consider the petition and dispose of the same in accordance with law.
15. Since the parties are represented by their respective counsel, they are directed to appear before the concerned trial Court on 06.01.2020 without expecting any separate notices from the said Court on the said date or any other date to be stipulated by the concerned trial Court. The appellant shall file her statement of objection to the petition filed by the respondent herein on that date. The concerned Family Court shall dispose of M.C.No.3445/2013 in an expeditious manner, preferably within a period of six months from the date of the order passed today, in accordance with law.
16. Both parties shall co-operate with the Family court for an expedient disposal of the proceeding.
17. The appeal is allowed and disposed of in the aforesaid terms.
Parties to bear their respective costs.
In view of disposal of the appeal, IA-1/2017 stands disposed of.
Sd/- JUDGE Sd/- JUDGE ln/Prs*