Mrs Veena S A Nayak vs Mr Shivaraj Kumar V
2021 Latest Caselaw 242 Kant

                        1


 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.

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:-

      "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,

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.

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:

"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,

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.

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.

Sd/-

JUDGE

Sd/-

JUDGE

rsk/-

CT-HR