Smt Sangeeta Sakri W/O Avinash ... vs Avinash S/O Venkatesh Mustoor
2021 Latest Caselaw 2361 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

         DATED THIS THE 24TH DAY OF JUNE 2021

                            PRESENT
           THE HON'BLE MR.JUSTICE S.G.PANDIT
                               AND
           THE HON'BLE MR.JUSTICE M.G.S.KAMAL

MISCELLANEOUS FIRST APPEAL NO.200210/2021 (MC)

Between:

Smt. Sangeeta Sakri W/o Avinash Mustoor
S/o Siddalingappa, Age: 29 Years
Occ: Jana Small Finance Limited
Lingareddy Building, Kalangataki Road
Saraswatipuram, Dharwad
                                                      ... Appellant

(By Sri Sanjeevkumar C. Patil, Advocate)

And:

Avinash S/o Venkatesh Mustoor
Age: 32 Years, Occ: Private Employee
R/o Ranganath Nilaya, Balaji Nagar
Yadgir, Tq. and Dist. Yadgir-585 201
                                                    ... Respondent

(Sri G.G. Chagashetti, Advocate)

       This Miscellaneous First Appeal is filed under Section 28(1)
of Hindu Marriage Act, 1955, praying to set aside the judgment
and decree dated 03.02.2021 passed by the Senior Civil Judge,
Yadgiri in M.C.No.14/2020 by allowing the appeal.

        This appeal coming on for Admission, this day, S.G.PANDIT
J., delivered the following:
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                        JUDGMENT

This appeal is by the wife filed under Section 28(1)

of the Hindu Marriage Act, 1955 (for short, 'the Act')

assailing the judgment and decree dated 03.02.2021 in

M.C.No.14/2020 passed by the learned Senior Civil

Judge at Yadgiri.

2. Facts leading to filing of this appeal briefly

stated are that appellant and the respondent are wife

and husband. Their marriage was solemnized on

16.05.2019. It is stated that after the marriage, both

the appellant and respondent initially stayed for

together at Yadgiri for two months, thereafter they

stayed six months at Dharward. It is alleged that

respondent-husband had received photo of one

Yankanna Badiyal on his Whatsapp in which appellant-

wife was seen in the photo along with said Yankanna

Badiyal and it is also alleged that when police enquired

with said Yankanna Badiyal, he admitted that he was in

illegal relationship with the appellant-wife. Therefore,

the respondent-husband filed petition under Section

13(1)(a) of the Act seeking dissolution of marriage.

3. Before the trial court, though notice was

served the appellant-wife remained absent and was

placed ex parte. The respondent-husband in order to

prove his case got examined himself as P.W.1 and got

marked as many as seven documents at Exs.P.1 to 7.

The trial court after hearing the respondent-husband,

proceeded to pass judgment, allowing the petition and

dissolved the marriage of the appellant and respondent

solemnized on 16.05.2019. Against which, the

appellant-wife is before this court in this appeal.

4. Heard the learned counsel Sri Sanjeev

Kumar C. Patil for appellant-wife and Sri G.G.

Chagshetti appearing for respondent-husband and

perused the records.

5. The only ground urged by the learned

counsel for the appellant-wife is that the appellant had

no opportunity to defend herself before the trial court.

It is his submission that the petition was filed before the

trial court on 15.07.2020 and on 24.08.2020 the court

recorded that notice to respondent was served. The

learned counsel submits that notice was served upon

the appellant but she could not appear before the trial

court due to Covid-19 pandemic period as there was

restrictions on travel and the appellant could not engage

an advocate in time to appear before the court. The trial

court proceeded to record the evidence of the

respondent-husband in a hurried manner and passed

the impugned judgment on 03.02.2021. Thus, the

appellant-wife prays for an opportunity to defend herself

before the trial court.

6. On the other hand, the learned counsel for

the respondent-husband submits that even after

sufficient opportunity, the appellant-wife failed to

appear before the trial court and defend herself. It is

further submitted that the respondent-husband

produced and got marked reply notice as Ex.P.3,

wherein she has admitted her illegal relationship with

one Venkanna Badiyal. Therefore, he submits that the

respondent-husband has proved the ground of cruelty

and thereby he justifies the impugned judgment passed

by the trial court and thus prays for dismissal of the

appeal.

7. On hearing the learned counsel and on

perusal of the order passed by the trial court, the only

point which falls for consideration is:

Whether the trial court was justified in disposing

of the petition granting decree of dissolution of marriage

of the parties to the appeal placing the appellant-wife ex

parte during the Covid-19 pandemic?

The answer to the above point is in the 'Negative'

for the following reasons.

8. The marriage of the appellant and the

respondent had taken place on 16.05.2019. Both the

learned counsel submit that initially after the marriage

both the wife and husband were residing at Yadgir for

two months and thereafter they resided at Dharwad for

a period of six months. Subsequently, due to certain

differences, the respondent-husband filed petition under

Section 13(1)(ia) of the Act seeking dissolution of the

marriage. It is pertinent to note that there is no dispute

with regard to service of notice on the appellant-wife in

the proceedings before the trial court. It is the specific

case of the appellant that due to Covid-19 pandemic,

she could not engage the counsel and appear before the

trial court in time as there was travel restrictions. The

appellant is residing at Dharwad, but the petition for

dissolution of marriage is filed before the Senior Civil

Judge at Yadgiri. We take judicial notice of the fact that

at the relevant point of time there was travel restrictions

due to Covid-19 pandamic. Under such circumstances,

we are inclined to accept the contention of the appellant

that due to Covid-19 pandemic situation she could not

travel to Yadgiri and engage the counsel in time.

Definitely, the appellant is entitled for an opportunity to

defend herself before the trial court. Only on the

ground of want of opportunity to the wife that too

during Covid-19 pandamic period, we allow the appeal

and set aside the judgment and decree dated

03.02.2021 in M.C.No.14/2020 passed by the Senior

Civil Judge, Yadgiri and the matter is remanded to the

trial court for fresh consideration in accordance with

law.

The parties to appear before the trial court on

16.07.2021, without expecting any fresh notice from the

trial court. The trial court to dispose of the petition as

expeditiously as possible after giving opportunity to

both the parties in the matter.

The parties are directed to co-operate for

expeditious disposal of the case.

Sd/-

JUDGE

Sd/-

JUDGE BL