Smt. Renuka vs Sri. Ningappa
2022 Latest Caselaw 176 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 5TH DAY OF JANUARY 2022

                            PRESENT

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
                                 AND
       THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA

                MFA NO.200312/2018 (MC-DIV)

BETWEEN:

Smt. Renuka W/o Ningappa Ainapura,
Aged about 26 years, Occ: Household,
R/at Mudnoora Village, Taluk Shorapura,
Dist. Yadagiri.
                                                         ... Appellant
(By Sri J. Augustin, Advocate)

AND:
Sri Ningappa S/o Basappa Ainapura,
Age: 28 years, Occ: Coolie,
R/at Malli Village, Taluk Jewargi,
Dist. Kalaburagi - 585 102.
                                                      ... Respondent

(V/O Dtd. 18.06.2018, notice to respondent is held sufficient)

       This MFA is filed under Section 28 of the Hindu Marriage
Act, praying to set aside the judgment and decree dated
15.11.2017 passed in M.C.No.06/2016 by the Senior Civil Judge
and Judicial Magistrate of First Class at Jewargi and consequently
cancel the decree of divorce and pass any other appropriate order
or direction/s as deemed fit under the facts and circumstances of
the case.
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      This appeal coming on for Final Hearing this day,
S.R.Krishna Kumar J, delivered the following:

                         JUDGMENT

This appeal by the appellant-wife is directed against the

impugned judgment and decree dated 15.11.2017 passed in

M.C.No.06/2016 by the Senior Civil Judge & JMFC at Jewargi,

whereby the divorce petition filed by the respondent-husband

under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 (for

short 'the Act, 1955') seeking a decree for divorce by

dissolution of marriage that took place on 29.05.2015 was

allowed by the Trial Court.

2. Heard the learned counsel for the appellant and

perused the material on record. The respondent-husband

having been served with the notice of this appeal has chosen

to remain unrepresented and has not contested this appeal.

3. The material on record indicates that in the

aforesaid divorce petition filed by the respondent-husband

against the appellant-wife, subsequent to filing the written

statement, the appellant-wife did not contest the matter any

further and did not cross-examine PW.1 (respondent), nor

adduced any oral and documentary evidence on her behalf.

So also, though the learned counsel for the respondent-

husband submitted arguments, there was no argument

addressed on behalf of the appellant-wife.

4. It is the specific contention of the appellant-wife

that due to bonafide reasons, unavoidable circumstances and

sufficient cause, she was not in a position to contact her

Advocate after filing the written statement and could not

contest the matter thereafter either by cross-examining the

respondent or by adducing oral and documentary evidence on

her behalf nor give instructions to her counsel to contest the

matter any further. It is submitted that the appellant has good

case to urge on merits and that balance of convenience is in

favour of the appellant and if an opportunity is granted in

favour of the appellant to cross-examine the PW.1 and adduce

evidence on her behalf, the appellant would take necessary

steps to do so and contest the matter. It is therefore submitted

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 after

providing one more opportunity in favour of the appellant to

contest the divorce proceedings instituted by the respondent

against the appellant.

5. As stated supra, despite having received notice of

the present appeal, the respondent-husband has chosen to

remain unrepresented and has not contested this appeal. As

rightly contended by the learned counsel for the appellant, the

material on record indicates that though the appellant filed

written statement/statement of objections to the divorce

petition, it was not possible for her to either cross-examine the

PW.1 or adduce any oral and documentary evidence on her

behalf due to bonafide reasons, unavoidable circumstances

and sufficient cause. The material on record also indicates

that the appellant was not in a position to give instructions to

her counsel to contest the proceedings on her behalf and

argue the matter after completion of the arguments of the

learned counsel for the respondent. Under these

circumstances, in the interest of justice and in order to provide

one more opportunity to the appellant to contest the matter on

merits, without expressing any opinion on the merits/demerits

of the rival contentions, we deem it just and proper to set

aside the impugned judgment and decree and remit the matter

back to the Trial Court for reconsideration afresh in

accordance with law by providing one more opportunity to the

appellant as well as the respondent to adduce such

evidence/further evidence on their respective sides.

6. In the result, we pass the following:

ORDER

i. The appeal is hereby allowed.

ii. The impugned judgment and decree dated 15.11.2017 passed in M.C.No.06/2016 by the Senior Civil Judge and JMFC at Jewargi is hereby set aside.

iii. The matter is remitted back to the Trial Court for reconsideration afresh in accordance with law.

iv. Liberty is reserved in favour of the appellant as well as the respondent to adduce such oral and

documentary evidence/further oral and documentary evidence on their respective sides and also cross-examine each other and their witnesses.

v. All rival contentions are kept open and no opinion is expressed on the same.

Sd/-

JUDGE

Sd/-

JUDGE LG