Nagaveni W/O Mallikarjun @ ... vs Mallikarjun @ Mallappa
2022 Latest Caselaw 12541 Kant

                                1      MFA No.201512/2021




            IN THE HIGH COURT OF KARNATAKA
                     KALABURAGI BENCH

       DATED THIS THE 18TH DAY OF OCTOBER, 2022

                           PRESENT

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

                              AND

       THE HON'BLE MR. JUSTICE ANIL B. KATTI


MISCELLANEOUS FIRST APPEAL No.201512/2021 (MC)


BETWEEN:

Nagaveni W/o Mallikarjun @ Mallappa
Age: 41 years, Occ: Household work
R/o Abbe Tumkur, Tq. & Dist. Yadgir
Now residing at H.No.10-2-25
Sangameshwar Colony, Kalaburagi
Dist: Kalaburagi-585102

                                              ... Appellant
(By Sri Sanjay A. Patil, Advocate)

AND:

Mallikarjun @ Mallappa S/o Siddappa
Age: 51 years, Occ: Teacher
R/o Bannigol village, now at Mudgal
Tq. Lingasugur, Dist: Raichur-585401

                                            ... Respondent

(Respondent is served)
                                   2              MFA No.201512/2021




      This Miscellaneous First Appeal is filed under Section 28
of Hindu Marriage Act, 1955 praying to call for the records of
court below, set aside the judgment dated 18.02.2016 and
decree dated 25.02.2016 passed in M.C.No.57/2014 on the file
of Senior Civil Judge and JMFC at Lingasugur and pass any such
orders or directions as deemed fit by this Court under the facts
and circumstances of the case, in the interest of justice.


      This    appeal     coming       on   for    orders      this   day,
K.S.Mudagal J., delivered the following:


                           JUDGMENT

Aggrieved by the decree of divorce granted against

her, the respondent in M.C.No.57/2014 on the file of the

Senior Civil Judge and JMFC, Lingasugur, has preferred this

appeal.

2. The marriage of the appellant and respondent

was solemnized on 26.06.1989. The parties are Hindus

and governed by Hindu Marriage Act, 1955 (for short

'H.M.Act'). The appellant had filed Criminal

Misc.No.187/2012 under Section 125 Cr.P.C. against the

respondent before Family Court, Kalaburagi seeking

maintenance from him. That petition was allowed on

14.06.2013 awarding maintenance of `5,000/- per month.

3. The respondent filed M.C.No.57/2014 before the

Trial Court against the appellant seeking decree of divorce

on the ground of cruelty. The appellant appeared through

her counsel. Pending M.C.No.57/2014, the appellant filed

C.P.No.200010/2015 before this Court seeking transfer of

the said case from the Court of Senior Civil Judge,

Lingasugur to the Family Court, Kalaburagi.

4. The additional documents produced under

I.A.No.2/2021 are the certified copies of the order in

C.P.No.200010/2015, the copies of the petition in Criminal

Misc.No.209/2010 and the copies of the applications filed

by the appellant under the RTI Act before Headmaster,

Girls High School, Mudagal and the information given by

the said authority. Those documents show that this Court

vide order dated 22.06.2015 allowed C.P.No.200010/2015

and withdrew M.C.No.57/2014 from the trial Court and

transferred the same to Family Court, Kalaburagi.

5. The additional documents produced further show

that when the appellant filed application before the

Headmaster, Girls High School, Muadagal seeking

particulars of the respondent's salary, an endorsement was

issued that he has submitted the impugned judgment and

decree before the said authorities.

6. The order in C.P.No.200010/2015 shows that the

respondent was represented through his counsel. Thus, he

was aware of the transfer order passed by this Court.

Taking advantage of the absence of counsel for the

appellant in M.C.No.57/2014, the respondent suppressing

the order of transfer passed by this Court in

C.P.No.200010/2015, pursued the said matter and secured

the decree. Therefore, the impugned judgment and

decree is liable to be set aside only on the ground of such

fraud played on the Court and on the other side. Under

the circumstances, the additional documents are relevant

for the purpose of adjudication of this case and they are

taken on record accordingly. I.A.No.2/2021 is accordingly

allowed.

7. The records show that the respondent filed

petition for divorce after 25 years of marriage. Under such

circumstances, Section 23 (1) (d) of the H.M. Act requires

the Court to consider the effect of such delay even if the

matter was undefended. That exercise was not done by

the Trial Court. On that count also the impugned

judgment and decree is liable to be set aside. Hence, the

following:

ORDER

(i) The appeal is allowed on payment of cost of

`10,000/- (Rupees Ten Thousand Only)

payable by the respondent to the appellant.

(ii) The impugned judgment and decree is

hereby set aside. The matter is remitted

back to the Trial Court. The Trial Court

namely the Senior Civil Judge and JMFC,

Lingasugur shall transfer the records of

M.C.No.57/2014 forthwith to the Family

Court, Kalaburagi.

(iii) The parties shall appear before the Family

Court, Kalaburagi on 05.12.2022 without

further notice. In case, any of the parties

fail to appear before the Family Court,

Kalaburagi, the Family Court shall proceed

to dispose of the matter in accordance with

law.

(iv) In case of appearance of both parties, the

Family Court shall provide reasonable

opportunity to both parties and dispose of

the matter in accordance with law within

four months from the date of their

appearance.

Sd/-

JUDGE

Sd/-

JUDGE swk