IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.308 OF 2019 (GM-FC) BETWEEN:
Sri. M.L. Vidyadhara, S/o Lakshmana, Aged about 49 years, Working at District Health Office, Chikkamagaluru, R/o Mugthihalli Village and Post, Chikkamagaluru Taluk and District – 577 101.
(By Sri. Girish B. Baladare, Advocate) AND:
Smt. Lakshmi, W/o M. L. Vidhadhara, Aged about 44 years, R/o Mugthihalli Village and Post, Chikkamagaluru Taluk and District – 577 101.
… Petitioner … Respondent This Writ Petition is filed under Articles 227 of the Constitution of India, praying to quash Annexure-A that the order dated 09.08.2018 passed by the Principal Judge, Family Court at Chikkamagaluru in C. Misc. No.01/2014 filed under Order IX Rule 13 of CPC consequently dismiss the petition filed under Order IX Rule 13 of CPC, and etc.
This Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER Sri. Girish B. Baladare, learned counsel for the petitioner.
Taking into account the order which this Court proposes to pass, it is not necessary to issue notice to the respondent.
2. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 09.08.2018 passed by the Principal Judge, Family Court at Chikkamagaluru, by which the application filed by the respondent-wife under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) has been allowed and the order dated 03.07.2013 passed in M.C. No.83/2013 has been set aside.
3. The facts giving rise to filing of the writ petition briefly stated are that the petitioner initiated the proceedings under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for short) seeking dissolution of marriage against the respondent.
4. It is the case of the respondent that she had no knowledge about the proceedings and when she was served with the summons on 18.07.2012, on the assurance made by the petitioner, she did not take any action and after the evidence of the petitioner in the proceedings under Section 13 of the Act was recorded on 18.07.2014, the petitioner informed her that he has obtained an exparte of divorce against her.
5. It is also averred that all along, the respondent-wife was residing with the petitioner. Thereafter, the respondent made enquiries and filed an application under Order IX Rule 13 of the Code for setting aside the exparte decree. The aforesaid application has been allowed by the Family Court vide order dated 09.08.2018. In the aforesaid factual background, the petitioner has approached this Court.
6. Learned counsel for the petitioner submitted that the Family Court ought to have appreciated that the respondent was served with the summons of the proceedings and therefore, she had knowledge about the proceedings and therefore, the Family Court has grossly erred in allowing the application filed by the respondent.
7. I have considered the submission made by learned counsel for the petitioner.
8. From perusal of Paragraph 10 of the impugned order, it is evident that the notices sent to respondent were duly served on her as evidenced from Ex.P3. The respondent, who has been examined as PW-1 before the Family Court in her evidence has said that when the summons were served to her, the petitioner insisted her to sign on the summons and kept the same in his custody telling that he will manage everything. Respondent believed the petitioner and did not take any action. Thereafter, subsequently on 18.07.2014, after the petitioner got divorce from the Family Court, the petitioner quarreled with the respondent and informed her that he has obtained exparte decree of Divorce against the respondent. Thus, the petitioner deliberately kept the respondent away from the proceedings and thereafter, the respondent filed the application, which has been allowed. The Family Court has further held that if the respondent is granted an opportunity to contest the case on merits, the petitioner would not suffer any irreparable injury or injustice.
9. Sufficient cause has been made out by the respondent-wife to allow the petition under Order IX Rule 13 of the Code. The impugned order neither suffers from any jurisdiction infirmity nor any error apparent on the face of the record warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India.
10. Even otherwise, it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the order is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423]. In the instant case, the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution.
11. In view of the aforesaid enunciation of law and in the facts of the case, I do not find any ground to interfere with the order dated 09.08.2018, which has been impugned in this petition.
12. However, petition is disposed of with liberty to the Family Court to decide the proceedings pending before it expeditiously in accordance with law.
Sd/- JUDGE Mds/-