IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH 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.7548 OF 2014 (MC) BETWEEN:
SMT. NAGARATHNA W/O SRI. HEMANNA S/O SANJEEVAIAH AGED ABOUT 32 YEARS R/O MARALUR TUMKUR TOWN-577201 ... APPELLANT (BY SMT. ANANYA PRANET, ADVOCATE FOR SRI. VIGHNESHWAR S. SHASTRI, ADVOCATE) AND:
SRI. HEMANNA S/O LATE VENKATAPPA AGED ABOUT 43 YEARS OCCUPATION: SERVICE R/AT SHANTHINAGAR NELAMANGALA TALUK BANGALORE RURAL DISTRICT-568201 ... RESPONDENT (BY SRI. V.B. SIDDARAMAIAH, ADVOCATE) THIS APPEAL IS FILED UNDER SECTION 28 OF HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED 26.07.2014 PASSED IN M.C.NO.9/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(I-A)(I-B) OF HINDU MARRIAGE ACT FOR DISSOLUTION OF MARRIAGE.
***** THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, SURAJ GOVINDARAJ J., PASSED THE FOLLOWING:
JUDGMENT 1. Though the appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. Appellant is the wife, while the respondent is husband. Appellant has assailed the Judgment and decree passed in M.C.No.9/2014 by the Senior Civil Judge at Nelamangala (‘trial Court’ for short), dated 26.07.2014. The respondent had filed the petition under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act” for the sake of brevity) seeking dissolution of marriage by a decree of divorce. By the impugned Judgment and decree, the Court below has allowed the petition. Being aggrieved, the appellant/wife has preferred this appeal.
3. We have heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.
4. The appellant states that the respondent had filed M.C.No.9/2014 before the trial Court seeking for divorce under Section 13(1)(ia)(ib) alleging that the appellant used to quarrel with the respondent and his parents and had deserted him. Though they had a child, she did not allow the respondent to see the child.
5. The respondent had initially filed a petition against the appellant for restitution of conjugal rights in M.C.No.20/2009, where the appellant was placed ex-parte on account of her refusal to accept notice. The trial Court had ordered and directed the appellant to join the respondent along with child to lead a married life. The appellant has refused to join the respondent and obey the orders of the Court. Many attempts were made by friends and relatives to help rejoin the appellant and respondent. Since the appellant was not ready for the reunion of their efforts went in vain.
6. The appellant had filed C.P.No.114/2015 before this Court seeking for withdrawal of M.C.No.9/2014 from the file of the Senior Civil Judge, Nelamangala and transfer the same to the Family Court, Senior Civil Judge, Tumkur for adjudication since she was living in the jurisdiction of the Family Court, Tumkur. This Court had issued notice in C.P.No.114/2014 and granted an interim order of stay of further proceedings in M.C.No.9/2014 on the file of the Senior Civil Judge, Nelamangala. In view thereof, the appellant had bonafide believed that she need not contest the proceedings in M.C.No.9/2014 until disposal of the Civil Petition No.9/2014. However, on account of her non-appearance, she was placed ex-parte and taking the evidence of the respondent, the trial Court allowed the petition and granted decree of divorce dissolving the marriage between the appellant and the respondent as per the Judgment and decree dated 26.07.2014.
7. The appellant contends that the trial Court ought not to have placed her ex-parte and such an order by the trial Court has caused tremendous amount of inconvenience and harm to the appellant. The appellant immediately on coming to know of the dissolution of marriage, by virtue of the order dated 26.07.2014 applied for copies of the said order and filed the present petition. This Court has granted an order of stay of the operation of the Judgment and decree dated 26.07.2014 passed in M.C.No.9/2014 until further orders on 8.12.2014. The respondent has entered appearance through his counsel.
8. Having heard the learned counsel for the respective parties, the questions that arise for determination are:
i) Whether the trial Court could have placed the appellant ex-parte and proceeded with the matter, more particularly, when this Court had granted stay of the proceedings in M.C.No.9/2014 in the Civil Petition filed by the app in C.P.No.114/2014?
ii) Whether the order of the trial Court requires to be interfered with ?
iii) What order ?
9. Admittedly, the appellant had filed C.P. No.114/2014 and this Court had vide its order dated 25.04.2014 stayed all further proceedings in M.C.No.9/2014 on the file of the Senior Civil Judge, Nelgamangala. The stay order dated 25.04.2014 was in force till next date of hearing which was 10.07.2014. Thus, as on the date of disposal of M.C.No.9/2014 by the trial Court, interim order was in force.
10. The petitioner on 10.07.2014 did not get the stay order extended but took steps for service of notice on the respondent. Subsequently, the matter came to be adjourned on 21.7.2014 awaiting service of notice. On 8.09.2014, the matter was admitted and the interim order was extended until disposal of the case. It is at this stage that the office of this Court drafted and communicated the order of stay to the trial Court. Until then, the order of this Court had not been brought to the notice of the trial Court either by the petitioner or the office of this Court. Finally in view of disposal of M.C. No.9/2014 by Judgment dated 26.07.2014 which was brought to the notice of this Court on 25.03.2015, this Court dismissed C.P.No.114/2014 as infructuous.
11. It was the duty of the petitioner to have brought to the notice of the trial Court about the stay of further proceedings in M.C.No.9/2014. The petitioner has stated that she was under the belief that this Court would communicate the orders to the trial Court and hence, once an order of stay has been passed, the petitioner did not appear before the trial Court. Both, the petitioner and the office of this Court are enjoined with the duty to bring to the notice of the Court below when a superior Court passes an order of stay.
12. In view of the fact that the proceeding in M.C.No.9/2014 had been stayed by this Court on 27.04.2014 and as on the date of disposal of M.C.No.9/2014, the interim order being in force, the order passed by the trial Court is not sustainable albeit there is no mistake on the part of the trial Court in passing such a Judgment since the trial Court was not aware of the stay. The petitioner cannot be made to suffer a decree of divorce when this Court thought it fit to stay all further proceedings. Apart therefrom, admittedly, the petitioner was placed ex-parte and after placing her ex-parte, her marriage with the respondent has been dissolved by Judgment dated 26.07.2014. The consequences of dissolution of marriage being very serious and the appellant having expressed her willingness and interest to reside with the respondent, it would be required for an opportunity to be provided to the appellant to contest the proceeding in M.C.No.9/2014, more so when there are serious allegations of cruelty and desertion which have been made which would have an adverse impact on the appellant.
13. In view of the above, taking note of the fact that the Judgment dated 26.07.2014 passed in M.C.No.9/2014 is ex-parte, the said Judgment is set-aside. The present matter is remanded to Senior Civil Judge, Nelamangala. The appellant and the respondent having appeared through counsel before this Court are directed to appear before the Senior Civil Judge, on 9.12.2019 without expecting any further notice. The trial Court shall permit the appellant herein to file her objections to the petition and take up the matter from that stage in accordance with law.
14. Both the counsels have submitted that they would cooperate with the trial Court for expeditious disposal of the matter.
15. Taking note of the above, we direct the trial Court to dispose of the matter within a period of nine months from 9.12.2019.
16. In order to avoid recurrence of such an event, the Registrar General as well as the Registrar Judicial are directed to instruct the Registry to communicate all orders of stay granted by this Court, by virtue of which the proceedings before the trial Court are stayed, at the earliest possible time to the Court from which matter has arisen. This is de hors the communication of the order of stay to the respondent in a case. As soon as the information is received by the trial court when communicated by the Registry of this Court, suitable entries have to be made in the order-sheet of the concerned case by the trial court.
The appeal is disposed of accordingly. No orders as to costs.
Sd/- JUDGE Sd/- JUDGE ln