IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI M.F.A. No.2576/2014 (MC) BETWEEN:
SMT N K SUDHA W/O N T KRISHNAPPA D/O K U GOPALA AGED 42 YEARS C/O.MUKESH GARMENTS 8TH CROSS SIDHAIAH ROAD BANGALORE AND RESIDING AT VELLIAMMA BUILDING 2ND FLOOR 7TH CROSS VINAYAKANAGAR BANGALORE–560 027. ... APPELLANT (BY SRI B.S.BASAVARAJU, ADVOCATE) AND:
N T KRISHNAPPA S/O.LATE THAMMAIAH AGED 52 YEARS KORANGALA VILLAGE BHAGAMANDALA HOBLI MADIKERI TALUK–571247. ... RESPONDENT (BY SRI M.M.ASHOKA, ADVOCATE) ***** THIS MFA IS FILED UNDER SECTION 28 OF HINDU MARRIAGE ACT AGAINST THE JUDGMENT AND DECREE DATED 13/11/2013 PASSED IN M.C.NO.45/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(i)(i-a) OF HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JYOTI MULIMANI J., DELIVERED THE FOLLOWING:-
JUDGMENT Though this appeal is listed for admission, with consent of learned counsel on both sides, it is heard finally.
2. The appellant is the wife, while the respondent is the husband. Appellant has assailed the judgment and decree passed in MC.No.45/2011 by the Court of Senior Civil Judge, at Madikeri, dated 13/11/2013.
3. The brief facts of the case are that the petitioner and respondent are Hindus by religion and they got married as per their customary rituals on 23.4.1993 at Gowda Samaja, Bhagamandala. Immediately, after their marriage, they started living together as husband and wife at Korangala village and they had cordial relationship with each other. Out of their wedlock, they have two children by name Chethan and Harshitha. They had a very cordial life for the past seventeen years. It is the case of the petitioner that in the month of July 2010, respondent got friendly with one - Mahesh of Mullusoge in Kushalnagar, Somawarpet Taluk. In this connection, there was misunderstanding between the petitioner and respondent. It is also the case of the petitioner - husband that the respondent was having an affair with Mahesh and started neglecting the petitioner and the children. The respondent used to leave the house quite often without the consent of the petitioner and used to stay outside. It is further stated that at the time of their marriage, he had given gold ornaments worth 22 grams. The same was pledged by the respondent in order to give money to Mahesh. When the petitioner came to know about the same, he cleared the loan amount and got released the gold ornaments. In order to maintain the cordial relationship with the respondent, the petitioner requested Mahesh to leave the house. When the respondent came to know about the same, she tried to assault the petitioner. Further, the respondent lodged a false complaint against the petitioner. After the said incident, the respondent left the house of the petitioner and started living with her parents along with her two children. Therefore, petitioner filed the petition seeking dissolution of marriage by a decree of divorce.
4. The Court of Senior Civil Judge, Madikeri vide order dated 13.11.2013, allowed the petition filed by the respondent under Section 13(1)(i)(i-a) of Hindu Marriage Act, 1955 (hereinafter referred to as the `Act’ for the sake of brevity) and dismissed the petition filed by the respondent under Section 13(1)(i-b) of the Act and dissolved the marriage by granting a decree of divorce. Being aggrieved, this appeal has been preferred by the wife.
5. Learned counsel for the appellant submitted that the order passed by the court below is virtually an ex parte one, without the respondent herein being cross- examined, though she had engaged an advocate and filed her written statement. Hence, the impugned order passed by the Court below is opposed to law, facts and evidence on record and decree of divorce has been passed against her. Therefore, she prayed to set aside the impugned judgment and order passed by the Court below.
6. On the contrary, learned counsel for the respondent supported the order passed by the Court below and submitted that the same does not call for any interference and prayed for dismissal of the appeal.
7. Having heard the learned counsel for the appellant, and on perusal of the material on record, the following points would arise for our consideration:
i. Whether the order passed by the court below in granting a decree of divorce is sustainable in law?
ii. If not, what order?
8. It is not in dispute that the appellant is the legally wedded wife of the respondent and they led a cordial marital life for seventeen years. The Court below has observed that inspite of several opportunities, PW-1 has not been subjected to cross-examination by appellant’s counsel nor has the appellant let in any evidence except filing objections for reasons best known to her. But the fact remains that the impugned judgment and decree has been passed without the appellant herein participating in the proceedings and in the absence of any material evidence on record, let in by the appellant herein. The court below is therefore not justified in granting decree of divorce as it is an ex parte one and which is in violation of the principles of natural justice. Hence, point No.1 is answered in the negative.
9. In the result, judgment and decree dated 13/11/2013 passed in MC.No.45/2011 is set aside. The matter is remanded to the trial Court for fresh adjudication after giving an opportunity to the appellant herein to cross-examine P.W.1, also to let in her evidence and to dispose of the petition in accordance with law.
10. Since the parties are represented by their respective counsel, they are directed to appear before the concerned trial Court on 16-12-2019, without expecting any separate notices from the said Court.
11. Parties to bear their respective costs.
In view of disposal of the appeal, I.A.No.II/2014 stands disposed.
Sd/- JUDGE Sd/- JUDGE Mgn/-