IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD MFA NO.6214/2016(MC) BETWEEN:
SRI N GOVINDARAJU S/O LATE SRI DODDANARASAIAH @ DODDATHAMMAIAH AGED ABOUT 48 YEARS WORK PLACE: PRIMARY HEALTH CENTRE CHIKKAKUNNALA VILLAGE GUBBI TALUK, TUMKUR DISTRICT -572216 (BY SRI.G.B.NANDISH GOWDA, ADV. FOR SRI.R.B. SADASIVAPPA, ADV.) AND SMT B R RADHA W/O SRI N GOVINDARAJU AGED ABOUT 39 YEARS R/O BACHENAHATTI VILLAGE KASABA HOBLI, MAGADI TALUK RAMANGARA DISTRICT-562120.
(BY SRI.B.T. INDUSHEKAR, ADV.) ... APPELLANT ... RESPONDENT THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURTS ACT PRAYING TO CALL FOR RECRODS IN M.C.NO.15/2015 FROM THE FILE OF THE SENIOR CIVIL JUDGE AT MAGADI AND TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 02.08.2016 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AT MAGADI IN M.C.NO.15/2015 AND CONSEQUENTLY ALLOW THE PETITION FILED BY THE APPELLANT SEEKING A DECREE OF DIVORCE AND ETC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of the learned counsel for the respective parties, it is heard finally.
2. Appellant is the husband, while the respondent is the wife. Appellant had filed M.C.No.15/2015 on the file of the Senior Civil Judge, Magadi seeking dissolution of marriage by a decree of divorce under Section 13(1)(b) of the Hindu Marriage Act, 1955 (hereinafter referred to as the “Act” for the sake of brevity). Respondent herein refused to receive the notice issued by the trial court and she was placed ex parte by order dated 19.9.2015. The trial court recorded the evidence of the appellant herein and dismissed the petition. Being aggrieved, this appeal has been preferred.
perused the material on record.
4. Learned counsel for the appellant drew our attention to paragraph 11 of the judgment of the trial court wherein it has been stated that on account of pendency of civil suit between the parties in O.S.No.257/2010 before the Court at Gubbi, petition for divorce cannot be considered on merits and therefore, the same has to be dismissed. Appellant’s counsel contended that the said reason is erroneous and the Court below has not considered the petition on merits.
5. Learned counsel for the respondent also submitted that the respondent was placed ex parte before the Court below. But despite the same, petition filed by the appellant herein has been dismissed. He, therefore, submits that appropriate orders may be made in this appeal.
6. Having heard the learned counsel for the parties, the only point that arises for consideration is, whether, the trial court was justified in dismissing the petition filed by the appellant herein?
7. The detailed narration of facts and contentions would not call for a reiteration except highlighting the fact that the respondent herein was placed exparte by order dated 19.9.2015 before the Court below. Appellant herein let in his evidence both oral as well as documentary. However, the trial court has not considered the evidence of the appellant in its proper perspective in the context of the relief sought for by the appellant herein. The trial court after quoting Section 13 of the Act has reasoned to the effect that on account of pendency of O.S.No.257/2010 before the Court at Gubbi, it would not be justifiable to accept the contentions of the appellant herein. On that premise, the point for consideration has been answered in the negative.
8. We find that the approach of the trial court is erroneous as the pendency of the suit O.S.No.257/2010, which is a suit for partition and separate possession between the parties, is no reason to consider the case of the appellant herein on merits. The said suit has been filed by the children of the appellant herein and the respondent herein is also party in the said suit, but she may be only a formal party in the suit.
9. Therefore, we find that the reasoning given by the trial court in paragraphs 11 and 12 of the impugned judgment is an erroneous approach in the matter. On that short ground alone, the impugned judgment and decree dated 2.8.2016 passed by the trial court in M.C.No.15/2015 is set aside. Appeal is allowed by remanding the matter to the trial court for fresh consideration.
10. Since the parties are represented by their respective counsel, they are directed to appear before the trial court on 03.06.2019 without expecting any separate notices from the said Court. Respondent herein is at liberty to file her statement of objections to the petition filed by the appellant herein on the said date or on any other date to be stipulated by the trial Court. It is needless to observe that the trial court shall dispose of the petition of the appellant herein in accordance with law.
Parties to bear their respective costs.
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