IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.870 OF 2018 (FC) BETWEEN:
MRS. SRIVIDYA @ MANASA W/O. MR. SOMU M., AGED ABOUT 24 YEARS, RESIDING AT NO.525, ’SAMUDAYA BHAVANA OM SHAKTHI TEMPLE’, SUBRAMANYAPURA POST, VASANTHPURA, BANGALORE – 560 061.
AND:
... APPELLANT (BY SRI N. JAGADISH AND SMT. R.N. AYESHA, ADVOCATES) MR. SOMU M.
S/O. SRI MANDAPPA, AGED ABOUT 32 YEARS, RESIDING AT MARASARA HALLI, BANAVASI POST, MARALVADI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT – 562 121.
... RESPONDENT [BY SRI N.N. RAJURS, ADVOCATE (ABSENT)] THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT, 1984 READ WITH SECTION 28(1) OF THE HINDU MARRIAGE ACT, 1955, AGAINST THE JUDGMENT AND DECREE DATED 09-12-2016 PASSED IN M.C. NO.2576 OF 2016 ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(ia) OF THE HINDU MARRIAGE ACT.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal was listed yesterday to consider the applications, nevertheless, we have heard learned counsel for the appellant.
2. Learned counsel for the respondent has not been appearing in the matter. In fact, on 10-7-2019, the matter was listed and ordered to be listed on 17-7-2019 as there was no representation on behalf of the respondent. Subsequently, the matter was listed yesterday (22-7-2019) and it was ordered to be listed today for dictating judgment.
Once again, there is no representation on behalf of the respondent.
3. This appeal is filed by the appellant-wife assailing the judgment and decree dated 9-12-2016 in M.C. No.2576 of 2016 passed by the II Additional Principal Judge, Family Court, at Bengaluru, by which, the petition filed by the respondent-husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955, (hereinafter referred to as ‘the Act’, for the sake of convenience) has been allowed and the marriage is dissolved by a decree of divorce. Being aggrieved, the wife has preferred this appeal.
4. Learned counsel for the appellant submitted that the appellant married the respondent on 24-1-2013 in Kanakapura Taluk as per Hindu rites and customs. That owing to certain misunderstanding between the parties, the respondent filed the petition under Section 13(1)(ia) of the Act seeking dissolution of the marriage by a decree of divorce. That the appellant was not duly served and she was placed ex-parte and an ex-parte judgment and decree of divorce has been granted. She submitted that the address furnished by the respondent in the petition before the Family Court was an incorrect address. Thereby, the appellant was not served and she was not aware of filing of the petition by the respondent herein, but the impugned judgment reveals that the appellant was served and remained ex-parte. She submits that neither the appellant was given an opportunity to contest the petition by filing statement of objections, nor for examining the respondent nor to lead her own evidence. That the impugned judgment and decree of divorce is in violation of the principles of natural justice. Therefore, the same may be set aside and an opportunity may be given to the appellant to contest the matter before the Family Court.
5. In support of her submissions, learned counsel pointed out the correct address of the appellant in the cause- title of the memorandum of this appeal and contended that the address furnished by the respondent before the Family Court was incorrect address, but the Family Court has noted that the appellant was served and erroneously placed the appellant herein ex-parte.
6. Having heard learned counsel for the appellant and on perusal of the material on record, it is noted that the address of the appellant furnished by the respondent before the Family Court is “No.362, Near Water Tank, Vasanthapura, Subramanyapura Post, Bengaluru-560 061”, but her actual address is “525, ‘Samudaya Bhavana Om Shankthi Temple’, Subramanyapura Post, Vasanthapura, Bengaluru-560 061”. The Family Court has recorded the fact that the appellant herein was served and thereafter placed ex-parte. If we compare the address of the appellant with what was furnished before the Family Court, the two are distinct. In the circumstance, it is held that the appellant herein was not at all served by the Family Court. Therefore, she did not appear before the said Court. She was erroneously placed ex-parte, as also, she has not been given an opportunity to contest the petition for divorce. She has neither filed her statement of objections nor cross-examined the respondent herein nor let-in her evidence. In the circumstance, the impugned judgment and decree has been passed by the Family Court without giving the appellant herein an opportunity of contesting the petition before the Family Court.
7. For the aforesaid reasons, the impugned judgment and decree of the Family Court is set-aside and the matter is remanded to the concerned Family Court so as to give an opportunity to the appellant herein to contest the petition by filing statement of objections.
8. Since the appellant is represented by the learned counsel before this Court, she is directed to appear before the Family Court on 3-9-2019, without expecting any separate notice from the said Court.
9. Since the respondent as well his counsel are absent, the Family Court to issue notice to the respondent on the said date. In the event the respondent herein or his counsel remain absent before the Family Court, the Family Court to dispose of the petition in accordance with law.
10. The appeal is allowed and disposed in the aforesaid terms.
In view of the disposal of the appeal, pending applications are ordered to be filed.
SD/- JUDGE SD/- JUDGE kvk