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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
MISCELLANEOUS FIRST APPEAL NO.2185 OF 2020 (FC)
BETWEEN:
MRS. VEENA S.A. NAYAK
D/O S.A.NAYAK
AGED ABOUT 28 YEARS
R/AT NO.874, KURGAL ROAD,
KESHAVAPURA, HEMANTHNAGAR
S.N.T.DEPARTMENT RAILWAY
HUBLI-580023
PRESENTLY R/AT NO.26,
PANTHASHREE COLONY,
BENGERI, HUBLI-580023
...APPELLANT
(BY SRI RAMANANDA A.D, ADV. (VC))
AND:
MR. SHIVARAJ KUMAR V
S/O VENKATESH
AGED ABOUT 32 YEARS
R/AT NO.1345/A
2ND CROSS, DODAMMA LAYOUT
R.T.NAGARA, BANGALORE-560032
PERMANENT ADDRESS:
C/O NANNYA NAIK,
MANTARGATTA, ITTIGE POST,
CHANNAGIRI TALUK,
2
DAVANAGER DISTRICT
PIN CODE-577221.
...RESPONDENT
(BY SRI B.K.KUMAR, ADV. - ABSENT)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 19(1) OF FAMILY COURTS ACT
AGAINST THE JUDGMENT AND DECREE DATED
28.02.2018, PASSED IN MC NO.3088/2017 ON THE FILE
OF THE V ADDITIONAL PRL. JUDGE, FAMILY COURT,
BENGALURU, ALLOWING THE PETITION FILED UNDER
SECTION 13(1)(ia) OF HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR FURTHER HEARING
THIS DAY, THROUGH VIDEO CONFERENCING /
PHYSICAL HEARING, NAGARATHNA J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal was listed on several occasions. There was no representation on behalf of the respondent. The appeal was once again listed yesterday. Learned counsel for the appellant was heard again. There was no representation on behalf of the respondent. Hence, the appeal has been listed for hearing today. Once again there is no representation on behalf of the respondent. In the circumstances, we have heard the appeal on the basis of Order 41 Rule 17(2) of Code of Civil Procedure,1908 and considered the submissions made by the appellant and we are disposing of this appeal by the following Judgment.
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2. The appellant is the wife and while the respondent is the husband. The appellant has filed this petition assailing the ex-parte Judgment and decree passed by the V Additional Principal Judge, Family Court at Bengaluru in MC No.3088/2017 dated 28-02-2018.
3. Briefly stated, the facts are that the respondent - husband filed a petition under Section 13(1)(i-a) of the Hindu Marriage Act,(hereinafter referred to as 'the Act' for the sake of brevity),seeking dissolution of marriage by a decree of divorce on the ground of cruelty. In the said case, the address of the respondent was shown as residing at No.874, Kurgal Road, Keshavapura, Hemanthnagar, S.N.T., Department of Railway, Hubballi- 580023. It is the case of the appellant that the notice issued by the Family Court to the appellant herein was not served. Consequently, she did not appear before the Family Court which ultimately placed her ex-parte. The Family Court recorded the evidence of the respondent as PW.1 and marked three documents as Exs.P-1 to P-3. The Family Court raised two points for consideration as under:- 4
"8.The points that arise for our
determination are:
1. Whether the petitioner proves that the Respondent has treated him cruelly and that he is entitled to have decree of divorce u/s.13(1)(ia) of H.M.Act?
2. What order?"
The Family Court answered Point No.1 in the affirmative and ultimately allowed the petition filed by the respondent-husband and granted a decree of divorce dissolving the marriage between the parties which was solemnised on 08-02-2014 at Basavanna Temple at Bellary. Being aggrieved, the wife has preferred this appeal.
4. Learned counsel for the appellant contended that the address shown in the cause-title of the petition filed by the respondent - husband was an incorrect address. That the respondent did not reside at the said address. At the relevant point of time, the appellant resided at No.68, Hemanth Nagar, Keshavapura, 5 Hubballi. She is presently residing at No.26, Panthashree Colony, Bengeri, Hubballi-580 023. He submitted that the address shown in the cause-title of the memorandum of appeal is as per the address which was indicated by the respondent in the petition filed by him under Section13(1)(i-a) of the Act. He further submitted that on account of the erroneous address shown by the respondent herein, the notice issued by the Family Court was not served on appellant. Neither was she aware of any paper publication that was taken up by the respondent - husband. She was erroneously placed ex-parte as no notice was served on her by the Family Court. Consequently, the impugned Judgment and decree of the Family Court is an ex-parte one. The Family Court did not have the benefit of the version of the appellant herein. Had the appellant herein had appeared before the Family Court and had filed her statement of objections, possibly, the Judgment and decree of the Family Court may have been totally different and the petition filed by the husband - respondent may have been dismissed.
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5. Learned counsel for the appellant further submitted that the parties have a daughter and she is presently residing with the appellant. In the circumstances, it was urged that the impugned Judgment and decree passed by the Family Court may be set aside and the matter may be remanded to the Family Court for fresh consideration by giving an opportunity to the appellant herein to file her statement of objections to the petition filed by the respondent - husband before the Family Court and to cross-examine PW.1 and also let-in her evidence in the matter.
6. As already noted, although the matter was listed on several occasions, respondent's counsel has not appeared. There was no representation on behalf of the respondent yesterday as well as today. In the circumstances, we have proceeded to consider the case of the appellant - wife and dispose of this appeal.
7. Having heard the learned counsel for the appellant -wife and on perusal of the material on record the following points would arise for consideration: 7
"1) Whether the Judgment and decree dated 28-02-2018 passed in MC No.3088/2017 which is an ex-parte Judgment and decree would call for interference in this appeal?2) What order ?"
The detailed narration of evidence would not call for reiteration except highlighting the fact that there was an error in the address of the appellant herein indicated in the petition filed by the respondent under Section 13(1)(i-a) of the Act. Notice issued by the Family Court on the said petition was not served on her. She was also not aware of the newspaper publication made on her by way of substituted service as stated in pragraph-5 of the impugned Judgment. Consequently, she was placed ex-parte. We find that the Family Court was not right in placing the appellant ex-parte, when the respondent had not given the correct address of the appellant in the petition filed before the Family Court. Consequently, the respondent was not served in the matter. Therefore, 8 she did not file her statement of objections as she did not appear in the matter. PW.1 was not cross-examined and the appellant herein did not let-in any evidence. Therefore, the impugned Judgment and decree being an ex-parte one and not in accordance with law, the same is liable to be set aside and is set aside.
In the circumstances, the appeal is allowed and disposed of in the following terms:
The matter is remanded to the concerned Family Court at Bengaluru. Since the appellant is represented by her counsel she is directed to appear before the Family Court on 02-02-2021.
On the said date or any date stipulated by the Family Court, the appellant to file her statement of objections to the petition filed by the respondent herein.
Since the respondent is not represented by counsel nor has he appeared in-person, the Family Court to issue notice to the respondent herein on the said date, so that the respondent could appear before the Family Court.
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On the statement of objections, filed by the appellant herein, the Family Court to dispose of the petition filed by the respondent herein under Section 13(1)(i-a)of the Act in accordance with law.
No costs.
In view of disposal of appeal, I.A.2/2020 has been perused and is disposed of accordingly. It is noted that the complaint is made by the appellant herein before the concerned police station, a copy of which is appended to I.A.No.2/2020 filed for production of additional documents.
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JUDGE Sd/-
JUDGE rsk/-
CT-HR