N. Vijaykumar vs Latha @ Sangeetha
2022 Latest Caselaw 1519 Kant

                            1


         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

    DATED THIS THE 2ND DAY OF FEBRUARY 2022

                        PRESENT

   THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                          AND

    THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

            MFA NO.200801/2021 (MC)

BETWEEN:

N. Vijaykumar S/o N.Amaranna
Age: 36 years, Occ: Nil
R/o Lakshmi Temple Road
Lingasugur, Dist: Raichur
Now residing at Uppar Street Gangavathi
Koppal District-583 227
                                            ... Appellant

(By Sri Mahantesh Patil, Advocate)

AND:

Smt. Latha @ Sangeetha W/o N. Vijayakumar
(D/o Late U. Shivamurthi)
Age: 30 years, Occ: Housewife
R/o C/o Smt. Ratnamma
W/o Late U. Shivamurthi,
Jayanagar, "B-Block",
Opp. House of Anjanappa
Food Officer, Nitavali-Davanageri-577 003
                             2


Presently residing at C/o Smt. Ratnamma P.C,
D/o Chourappa, D No.874/06, Shakti Nagar
Davanageri-577 003
                                         ... Respondent

(By Sri Deepak V. Barad, Advocate)

     This Miscellaneous First Appeal is filed under Section
28 of the Hindu Marriage Act, praying to set aside the
judgment and award dated 11.01.2021 passed by the
learned Senior Civil Judge and JMFC at Lingasugur in M.C.
No.34/2016 and consequently allow the Divorce Petition as
prayed before the learned Senior Civil Judge and JMFC at
Lingasugur.


     This appeal coming on for hearing on I.A this day,
S.R.Krishna Kumar J., delivered the following:


                          JUDGMENT

This appeal by the husband is directed against the

impugned judgment and decree dated 11.01.2021 passed

in M.C.No.34/2016 by the Senior Civil Judge and JMFC,

Lingasugur, whereby the petition filed by the husband

against the wife-respondent for a decree for dissolution of

their marriage which was solemnized on 07.07.2014 on

the grounds of cruelty and adultery was dismissed by the

Trial Court.

2. Heard the learned counsel for the appellant-

husband and the learned counsel for the respondent-wife

and perused the material on record.

3. In addition to reiterating the contentions urged

in the appeal and referring to the material on record,

learned counsel for the appellant submits that the

appellant filed the aforesaid petition against the

respondent seeking divorce on the ground of cruelty as

contemplated under Section 13(1)(ia) of the Hindu

Marriage Act (for short 'the Act') and on the ground of

adultery as contemplated under Section 13(1)(i) of the

Act. It is pointed out that though the appellant had not

sought for a decree for divorce on the ground of desertion

as provided under Section 13(1)(ib) of the said Act, the

Trial Court proceeded to frame point/issue No.1 for

consideration with regard to proof of desertion which was

neither pleaded nor put forth by the appellant before the

Trial Court. It is also submitted that though the appellant

had sought for a decree for divorce on the ground of

adultery of the respondent with one P. Ramesh, who was

alleged to be the adulterer, due to oversight and

inadvertence, the appellant was not in a position to make

the said adulterer P. Ramesh as an additional respondent

to the proceedings. Under these circumstances, the

appellant was not in a position to place sufficient material

before the Trial Court for the purpose of establishing the

allegation of adultery and consequently in the light of the

decision of the Division Bench of this Court in the case of

Arun Kumar Agarwal vs Smt. Radha Arun and

Another reported in ILR 2004 KAR 808, wherein it is

held that the alleged adulterer is a proper party to a

matrimonial proceeding, it is necessary that an opportunity

is granted in favour of the appellant to implead the said

adulterer P. Ramesh by setting aside the impugned

judgment and decree passed by the Trial Court and

remitting the matter back to the Trial Court for

reconsideration afresh by reserving liberty in favour of the

parties to adduce further oral and documentary evidence

in support of their respective contentions.

4. Per contra, learned counsel for the respondent-

wife would support the impugned judgment and decree

passed by the Trial Court and submits that there is no

merit in the appeal and the same is liable to be dismissed.

5. After hearing the learned counsel for the

parties, the following points would arise for consideration

in the present appeal:

i. Whether the alleged adulterer was a proper

and necessary party to the proceedings before

the Trial Court?

ii. Whether the impugned judgment and decree

passed by the Trial court warrant interference

in the present appeal?

Point No.1:

6. The material on record clearly indicates that

though the appellant-husband had sought for a decree for

divorce specifically contending that the respondent-wife

was guilty of living in adulterous relationship with one

P. Ramesh thereby attracting Section 13(1)(i) of the Act,

the alleged adulterer was not impleaded as a party to the

proceedings before the Trial Court. In this regard, the

explanation offered by the appellant that due to oversight

and inadvertence the appellant could not implead the

alleged adulterer as an additional respondent before the

Trial Court deserves to be accepted. The question with

regard to whether an alleged adulterer is a proper and

necessary party to matrimonial proceedings seeking

divorce on the ground of adultery is no longer res integra

in the light of the decision of the Division Bench of this

Court in Arun Kumar Agarwal's case (supra), wherein

this Court has categorically held that the alleged adulterer

is a proper, if not necessary party for the purpose of

effective and complete adjudication of the issues in

controversy between the parties, in particular the issue

with regard to adulterous relationship alleged by one party

against the other party. Under these circumstances,

we are of the considered opinion that the Trial Court failed

to consider and appreciate that the alleged adulterer was a

proper party to the proceedings before the Trial Court and

consequently, the impugned judgment and decree passed

by the Trial court without impleading the alleged adulterer

P. Ramesh as additional respondent to the proceedings is

illegal and erroneous and the same deserves to be set

aside on this ground alone. Point No.1 is answered

accordingly.

Point No.2:

7. As rightly contended by the learned counsel for

the appellant, a perusal of the petition filed by the

appellant as well as the other material on record will

clearly indicate that except merely stating that the

respondent had deserted the appellant on 04.09.2015

about one month prior to filing of the petition before the

Trial Court on 05.10.2015, the appellant-husband had not

sought for a decree for divorce on the ground of desertion

as contemplated under Section 13(1)(ib) of the Act, which

mandates that the wife/respondent ought to have deserted

the husband/petitioner for a continuous period of two

years prior to filing of the petition. In the instant case, as

stated supra, except stating that the respondent had

deserted and left the matrimonial home one month prior to

filing of the petition, no ground of desertion was urged by

the appellant before the Trial Court, nor Section 13(1)(ib)

of the Act was invoked by him for the purpose of seeking

divorce. Consequently, the question of framing

issues/points for consideration as to whether the appellant

proves desertion would not arise and the said finding on a

non-issue which was treated as issue No.1 by the Trial

Court deserves to be set aside.

8. So also, learned counsel for the appellant is

correct in his submission that though the appellant had

sought for divorce by invoking Section 13(1)(ia) of the Act

on the ground of physical and mental cruelty, the Trial

Court committed an error in not framing any issue/point

for consideration with regard to the plea of cruelty and on

this ground also, the impugned judgment and decree

passed by the Trial Court deserves to be set aside.

9. It is relevant to state that it is well settled that

in the absence of necessary pleadings, the question of

framing an issue would not arise; as stated supra, in the

absence of any pleading with regard to desertion, the Trial

Court clearly misdirected itself in framing an issue

regarding desertion; so also despite there being pleading

of cruelty, the Trial Court also committed an error in not

framing any issue with regard to cruelty. In this context, it

is necessary to refer to Order XLI Rule 25 of CPC, which

reads as under:

"25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.-Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to

the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time."

10. In the instant case, as state supra, though

there were pleadings and contentions on both sides with

regard to cruelty, the Trial Court has committed an error in

omitting to frame an issue with regard to cruelty which

was borne out from the material on record. Under these

circumstances, exercising our powers under Section 107

R/w Order XLI Rules 25 and 33 of CPC, we deem it just

and appropriate to direct the Trial Court to frame

appropriate issues based on the pleadings of the parties

including the issue with regard to cruelty and/or any other

issue that may arise for consideration before the Trial

Court.

11. In view of the aforesaid facts and

circumstances, we are of the considered opinion that the

impugned judgment and decree passed by the Trial Court

deserves to be set aside and the matter be remitted back

to the Trial Court for reconsideration afresh by reserving

liberty in favour of the appellant to implead the alleged

adulterer P. Ramesh as additional respondent and also by

reserving liberty in favour of both parties to adduce such

further oral and documentary evidence in support of their

respective contentions.

12. At this stage, learned counsel for the

respondent-wife submits that the appellant-husband has

driven the respondent out of the matrimonial home which

is a shared household and has committed acts of cruelty

and domestic violence including non-payment of

maintenance to her which is resulting in irreparable injury

and hardship to the respondent. It is also submitted by

the learned counsel for the respondent that the respondent

is presently residing in Davangere and traveling all the way

to Lingasugur to conduct the proceedings before the Trial

Court which would cause a great deal of inconvenience and

hardship to the respondent, who intends to take necessary

steps before the Trial Court to ventilate her grievances and

as such, it is necessary that the matter be transferred from

to the Trial Court at Lingasugur to the Family Court at

Davangere.

13. The said submission of the learned counsel for

the respondent is placed on record. Accordingly, without

expressing any opinion on the merits/demerits of the rival

contentions, we also deem it just and proper to exercise

our powers under Section 24 of CPC R/w Article 227 of the

Constitution of India and direct that M.C. No.34/2016

presently pending before the Senior Civil Judge and JMFC,

Lingasugur to be withdrawn from that Court and

transferred to the Family Court at Davangere for

reconsideration afresh in accordance with law within a

stipulated time frame.

14. In the result, we pass the following:

ORDER

i. The appeal is allowed.

ii. The impugned judgment and decree dated

11.01.2021 passed in M.C. No.34/2016 by the

Senior Civil Judge and JMFC, Lingasugur (Trial

Court) is hereby set aside and the matter is

remitted back to the Trial Court for

reconsideration afresh.

iii. The parties are directed to appear before the

Trial Court (Senior Civil Judge and JMFC,

Lingasugur) on 14.03.2022.

iv. Immediately upon appearance of the parties

before the Trial Court on 14.03.2022 as stated

supra, the Registry of the Trial Court is

directed to take necessary steps to transfer the

said M.C. No.34/2016 from the file of the Trial

Court to the Family Court at Davangere for

proceeding further in the matter.

v. The Trial Court is also directed to fix a date for

appearance of the parties before the transferee

Court i.e., the Family Court at Davangere.

vi. Upon the parties appearing before the

transferee Court, Davangere, liberty is

reserved in favour of the appellant-husband to

take necessary steps to implead the alleged

adulterer P.Ramesh as an additional

respondent to the proceedings.

vii. Liberty is also reserved in favour of the

appellant as well as the respondent to adduce

additional oral and documentary evidence in

support of their respective contentions.

viii. Liberty is also reserved in favour of the

respondent to take necessary steps to ventilate

her grievances before the transferee Court i.e.,

Family Court at Davangere, including filing the

application for appropriate reliefs/ interim

reliefs.

ix. The transferee Court i.e., the Family Court at

Davangere is directed to dispose of the matter

as expeditiously as possible and preferably on

or before 17.12.2022.

x. All rival contentions between the parties are

kept open and no opinion is expressed on the

same.

xi. In view of disposal of the appeal, I.A.1/2021

for early hearing does not survive for

consideration and the same stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

LG