IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD M.F.A.No.915 OF 2018 (FC) BETWEEN:
Smt. V.Shruthi W/o N.Jagadeesh Kumar Aged about 28 years Residing at R.F. Road Malur Town, Kolar District Pin-563130. …. Appellant (By Sri.R.V.Shivananda Reddy, Advocate) AND Sri. N.Jagadeesh Kumar S/o Narayanaswamy Aged about 33 years Residing at Meenakunte Doddajala, Bengaluru-562157. … Respondent (By Sri.Deepak J., Advocate for C/R1) This MFA is filed under Section 19(1) of Family Court Act, against the judgment and decree dated:04.01.2018 passed on MC.No.170/2016 on the file of the 5th Additional Principal Judge, Family Court, Bengaluru allowing the petition filed under Section 12(d) of Hindu Marriage Act 1955.
This MFA, coming on for orders, this day, NARENDRA PRASAD J., delivered the following:
JUDGMENT Though the matter is listed for considering I.A.No.1/2019, with the consent of learned counsel on both sides, it is heard finally.
2. For the sake of convenience, the parties shall be referred to in terms of their status before the Family Court.
3. The respondent in M.C.No.170/2016 has filed this appeal, being aggrieved by the order passed by the V Additional Principal Judge, Family Court, Bengaluru, dated 04.01.2018. The petitioner – husband had filed M.C.No.170/2016, seeking dissolution of marriage with the appellant – wife, which was solemnized on 21.03.2014 at Maruthi Convention Hall, Marenahalli, Jala Hobli, Bengaluru North Taluk, Bengaluru.
4. The brief facts of the case, according to respondent is that, after marriage, both of them were living as husband and wife at Meenakunte, Doddajala, Bengaluru North Taluk, Bengaluru. After marriage, respondent disclosed to him that she was not interested to marry him as she was having a love affair with another person who was studying along with her and she was forced to marry the petitioner. She was not cooperating with the petitioner, expressing her health problems. When petitioner took her to a Gynecologist, he came to know that she was pregnant. She also sought excuse from him and had taken a promise from him that he should not disclose this fact to any of his family members except her mother. She also threatened him that if he discloses the matter to anybody, she would commit suicide with a death note stating that petitioner is the cause for her suicide. Hence, he promised that he would not inform the aforesaid fact to anybody. Again, he took her to a Gynecologist and requested the doctor to get her aborted. But due to advance stage of pregnancy, the doctor refused to agree to his request and advised her to go for an early delivery. As per the advise of the doctor, petitioner and his in-laws took the respondent to the hospital and after pre delivery she was discharged and went to her parental house. After one month, she came back to her matrimonial house. For few days she was very quiet and behaving decently with respondent and his parents. Thereafter, she started ill treating the respondent and his parents, showing her reluctance towards the respondent. Because of the strange behaviour of the respondent, petitioner suffered much mental pressure and torture. Hence, he was constrained to file a petition seeking divorce.
5. In response to the court notice, respondent appeared through her advocate and filed her statement of objections and sought for restitution of conjugal rights as a counter claim. In her statement of objections, she admitted the relationship but denied all other allegations made by the petitioner against her. She has stated that petitioner – husband was making false allegations against her and assassinating her character. She stated that even before marriage also petitioner used to take her shopping, temple, parks, movies etc. and that there was a physical relationship between them even before their marriage and even after marriage also she had physical relationship with him; that her husband and in-laws were treating her as a slave; that there was a demand for dowry; that her husband was having a relationship with another person; that after coming to know about her pregnancy, he forced her to abort the child and they got pre delivery of the baby and she was forced to go to her parental house and stay there till her parents assured him and his family members of fulfillment of the dowry demands. Afterwards, she was brought back to her matrimonial house. She further stated that from the date of marriage the petitioner – husband, on one pretext or the other, was humiliating her. Even his family members were also harassing her and asked her to bring dowry; that her parents had given by way of dowry more than demanded by her husband and his parents; that she is having an younger sister whom her parents have to perform marriage and she does not want to be a burden to her parents and ask for more money to give it to her husband’s family and hence, sought for dismissal of the suit.
6. Based on the rival pleadings, the Trial Court framed the following issues for its consideration:
“1. Whether the petitioner proves that the respondent has treated him cruelly and that he is entitled to have decree of divorce u/S. 12(d) of H.M. Act?
2. What order?”
7. In support of his case, petitioner examined himself as PW1. He produced seven documents which were marked as Exs.P1 to P7. But the respondent neither cross- examined the petitioner nor let in any evidence on her behalf. The arguments were heard and the Family Court answered issue Nos.1 and 2 in the affirmative and allowed the petition, granting a decree of divorce to the petitioner by dissolving his marriage with the respondent. Being aggrieved by the ex parte order of the Family Court, appellant herein, being the wife, has preferred this appeal.
8. We have heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.
9. Appellant’s counsel contended that the order of the Family Court is one sided. It is an ex parte decree, as appellant herein did not participate in the proceedings after filing of statement of objections. He contended that the appellant herein did not cross-examine the respondent herein and as a result, the evidence of the respondent herein has not been tested. He further submitted that the appellant herein did not let in her independent evidence in the matter. There has been no contest in the case of the respondent herein. Therefore, the ex parte order of the Family Court is in violation of the principles of natural justice as the appellant herein had no opportunity to put forth her case before the Family Court. Therefore, this Court may set aside the order of the Family Court and remand the matter so as to enable the appellant herein to cross-examine the respondent herein and also to let in her evidence.
10. Per contra, learned counsel for the respondent supported the order of the Family Court and contended that the respondent herein cannot be prejudiced on account of non-participation of the appellant herein before the Family Court. He contended that the appellant herein appeared through her counsel. She filed her objections. It was the duty of the appellant herein to cross-examine the respondent herein and to let in her evidence. But the same not having been done, cannot cause any prejudice or hardship to the respondent herein. He submitted that the Family Court has examined the evidence on record and has rightly allowed the petition by granting a decree of divorce and that there is no merit in the appeal.
11. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(1) Whether the order of the Family Court would call for any interference in the matter?
(2) What order?
12. The detailed narration of facts would not call for any reiteration except highlighting the fact that the impugned order is virtually an ex parte one. Although appellant herein filed her statement of objections, she did not participate in the proceedings. The evidence let in by the respondent herein went unchallenged as the appellant herein did not cross-examine the respondent herein. Further, the appellant herein did not let in her evidence to rebut the case of the respondent herein and to establish her defence in the proceedings. In the circumstances, the ex parte order, being an untested one, is in the absence of the appellant herein participating in the proceedings.
Although the appellant herein ought to have participated in the proceedings, nevertheless the ex parte order has been passed by the Family Court without hearing the appellant herein. On that short ground alone, the impugned order is set aside.
13. In the result, the appeal is allowed. The judgment and decree of the V Additional Principal Judge, Family Court, Bengaluru is set aside. M.C.No.170/2016 is restored on the file of the Family Court.
14. As the matter is remanded, both the parties, who are represented by their respective counsel, are directed to appear before the concerned Family Court on 03.06.2019, without expecting any separate notices from the said Court. The appellant is permitted to cross-examine the respondent and also let in her evidence. Both the parties are directed to cooperate with the Family Court for an expeditious disposal of the matter.
Appeal is allowed and disposed off in the aforesaid terms.
Parties to bear their respective costs.
In view of disposal of the appeal, I.A.No.1/2019 is filed.
Liberty is reserved to the appellant to seek relief claimed in I.A.No.1/2019 before the Family Court in accordance with law, if so advised.
Sd/- JUDGE Sd/- JUDGE Cm/-