IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13th DAY OF DECEMBER, 2017 PRESENT THE HON’BLE MR. JUSTICE B.S PATIL AND THE HON’BLE MR.JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.11144/2012 (MC) BETWEEN:
SMT. MUNNIDEVI W/O NARAYANALAL AGED ABOUT 33 YEARS 1ST FLOOR, NEAR NEW BALDWIN RESIDENTIAL SCHOOL R.M. NAGAR MAIN ROAD DODDABANASAVADI BANGALORE-43.
(FALSE NAME AND ADDRESS SHOWN IN THE CAUSE TITLE OF THE PETITION IN M.C. NO 2483 OF 2010) SMT. MUNNI W/O NARAYANALAL AGED ABOUT 35 YEARS RESIDING AT NO.452/1, DODDABANASAVADI VIJAYA BANK COLONY RAMAMURTHINAGAR MAIN ROAD BANGALORE-560043.
(CORRECT NAME AND ADDRESS OF THE APPELLANT AT THE TIME OF FILING PETITION IN M.C. NO. 2483/2010) AT PRESENT:
SMT. MUNNI W/O NARAYANALAL D/O BHAGAWAN RAM AGED ABOUT 37 YEARS R/AT C/O BHAGAVAN RAMJI SERVI BERA RAKI- VILLAGE POST GURIYA THAHASIL, RAIPUR PALI-DISTRICT RAJASTAHAN-306307 ... APPELLANT (BY SRI. M R HIREMATHAD & SRI. CHANNABASAIAH G.M, ADVOCATES) AND:
SRI NARAYANALA S/O DAGLA RAMJI AGED ABOUT 35 YEARS R/AT KAVERI HARDWARE DODDABANASAVADI R NAGAR MAIN ROAD NEAR MUKUNTHAMMA TEMPLE BANGALORE-560043 (FALSE ADDRESS SHOWN IN THE CAUSE TITLE OF THE PETITION IN M.C. NO 2483 OF 2010) SRI NARAYANALA S/O DAGLA RAMJI AGED ABOUT 37 YEARS R/AT NO.452/1, DODDABANASAVADI VIJAYA BANK COLONY RAMAMURTHINAGAR MAIN ROAD BANGALORE-560043.
... RESPONDENT (BY SRI. A. V. RAMAKRISHNA, ADVOCATE) THIS APPEAL IS FILED UNDER SECTION U/S 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 30.07.2011 PASSED IN M.C.NO.2483/2010 ON THE FILE OF THE III ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, ALLOWING THE PETITION FILED U/S 13(1)(ia) OF HINDU MARRIAGE ACT, FOR DISSOLUTION OF MARRIAGE.
THIS APPEAL IS BEING HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ARAVIND KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT Appellant who was respondent in M.C.No.2483/2010 which petition came to be filed by the respondent herein before the III Additional Principal Judge, Family Court at Bengaluru under Section 13(1)(i-a) of Hindu Marriage Act, 1955 for dissolution of his marriage with the appellant herein, solemnized on 24.04.1994 is before this Court being aggrieved by the judgment and decree dated 30.07.2011 passed by the Family Court dissolving said marriage.
2. Facts in brief which has led to filing of this appeal are as under:
Marriage between petitioner and respondent came to be solemnized at Rajasthan and it was stated to be a child marriage as per the practice prevailing in their community. It was contended in the petition that Gouna ceremony was conducted on 24.04.1994 on her attaining puberty. It was further contended that after the marriage, respondent – wife came to stay with him at Bengaluru and it was alleged that she never tried to adjust to the matrimonial home and out of said marriage, three children were born and petitioner alleged that respondent refused to adjust to the matrimonial house and also did not perform the basic duties like cooking and feeding the children. Hence, alleging mental cruelty meted out by the respondent over a long period of 17 years, he sought for dissolution of the marriage. Respondent is stated to have appeared through an Advocate but did not file objections or contest the matter.
3. Petitioner got himself examined as P.W.1 and got marked 8 documents. No evidence was tendered by the respondent. Family Court after considering the petition averments, oral evidence tendered by the petitioner which had remained uncontroverted, by its judgment dated 30.07.2011 dissolved the marriage solemnized on 24.04.1994 between appellant and respondent.
4. We have heard the arguments of Sri M.R.Hiremathad, learned Advocate appearing for appellant and Sri A.V.Ramakrishna, learned Advocate appearing for respondent and perused the records secured from the family Court.
5. It is the contention of learned Advocate appearing for appellant that appellant – wife was never represented before family Court and even the advocate who is said to have appeared on her behalf by filing vakalathnama would disclose that enrolment number of the advocate as reflected in said vakalathnama is incorrect and as such, judgment passed by the family Court is without affording opportunity to the appellant.
He would also submit that appellant never appeared before family Court and respondent – husband with an intention of marrying one Smt.Rekha Choudhary with whom he was having an extra marital relationship had filed a false case and had obtained a judgment and decree of dissolution of their marriage. He would also submit that there has been improper appreciation of evidence by family Court.
6. Per contra, learned Advocate appearing for respondent – husband would support the judgment and decree passed by the family Court and prays for dismissal of the appeal.
7. Having heard the learned Advocates appearing for parties, we are of the considered view that following point would arise for our consideration:
“Whether judgment and decree passed in M.C.No.2483/2010 suffers from any infirmity either in law or on facts calling for our interference?”
8. The facts leading to the filing of this appeal has already been narrated herein above and as such, repeating the same would only be burdening this judgment and as such, they are not narrated herein except to the extent required for adjudicating the point formulated herein above.
9. There is no dispute to the fact that respondent and appellant are husband and wife and their marriage having been solemnized on 24.04.1994 at Rajasthan. Out of said wedlock, three children have been born and they were residing together at Bengaluru.
10. Respondent- husband had filed a petition under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 for dissolution of the marriage on the ground of cruelty. Records of family Court would disclose that statement of objections had not been filed and evidence tendered by the husband had remained uncontroverted. On the basis of available records, trial Court has granted the prayer sought for by respondent - husband.
11. All efforts came to be made by this Court to explore the possibility of making the parties to arrive at an amicable settlement and the matter had also been referred to Bangalore Mediation Centre and the report dated 13.11.2017 received from Bangalore Mediation Centre, would disclose that mediation which was initiated did not yield any fruitful result and parties did not reach any settlement.
12. It is the grievance of appellant – wife that she had not appeared before family Court, she had not engaged any counsel and she was not aware of the pendency of proceedings. It is also reiterated by her before this Court that in the alleged mediation referred to by the family Court, she had not appeared and as such she has sought for exparte order being set aside.
13. Perusal of the judgment under challenge would disclose that family Court has proceeded to decree the same on the basis of self serving testimony of the respondent – husband. Learned trial Judge has also noticed that evidence tendered by the husband discloses that he had been assaulted by his wife or she had caused physical cruelty to him. However, no material in this regard like lodging of a complaint or any other independent witness supporting his contention was placed by him before the Court below.
14. Though learned counsel appearing for respondent – husband would vehemently contend that appellant – wife had appeared before family Court but did not contest for reasons best known and would draw the attention of the Court to the signature found in the vakalathnama filed before Court below for being compared with the signature of respondent found in the vakalathnama filed in the present appeal, we are unable to accept said contention, since perusal of the signatures found on the vakalathnamas filed in M.C.No.2483/2010 and this appeal, it would prima facie disclose they are different. In fact, identity of the signatory in the vakalathnama filed before the trial Court is not established since it is not identified by an Advocate. Be that as it may. We do not propose to go deeper in to this aspect inasmuch as, judgment and decree passed by the family Court is an exparte judgment and decree and it would not disclose about any permanent alimony having been granted to the appellant – wife. We are also of the view that appellant should be extended full opportunity to defend her rights by permitting her to contest the matter by filing written statement. Hence, we are of the considered view that judgment and decree passed by the family Court deserves to be set aside and matter requires to be remitted back to the family Court for adjudication afresh.
15. Hence, we proceed to pass the following: JUDGMENT (1) Appeal is hereby allowed.
(2) Judgment and decree passed by III Additional Principal Judge, Family Court, Bengaluru in M.C.NO.2483/2010 on 30.07.2011 is hereby set aside and matter is remitted back to the Principal Judge, Family Court, Bengaluru for being disposed of on merits and in accordance with law.
(3) Appellant would be at liberty to file statement of objections/written statement and contest M.C.No.2483/2010 on merits and they would also be at liberty to tender evidence, if any.
(4) Both parties are directed to appear before the Principal Judge, Family Court, Bengaluru on 22.01.2018 without waiting for any further notice.
(5) Registry is directed to transmit the records to the jurisdictional Family Court forthwith.
SD/- JUDGE SD/- JUDGE *sp