Smt S D Savitha vs Sri Prakash M S
2022 Latest Caselaw 11794 Kant

                                        M.F.A.No.4269/2014
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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 13TH DAY OF SEPTEMBER 2022

                       PRESENT

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

                         AND

        THE HON'BLE MR. JUSTICE S.RACHAIAH

 MISCELLANEOUS FIRST APPEAL NO.4269/2014(FC)

BETWEEN:

SMT.S.D.SAVITHA
W/O PRAKASH M S
AGED ABOUT 40 YEARS
NOW R/AT: GENDEHALLI
SHANIVARAPETE, BELURU TALUK
HASSAN DISTRICT                         ...APPELLANT
(BY SRI.SHIVAYOGI B HALLUR, ADVOCATE)

AND:

SRI.PRAKASH M S
S/O SIDDALINGE GOWDA
I FLOOR, OPP.ST.MERRY'S SCHOOL,
KALYAN NAGAR, T DASARAHALLI,
BANGALORE - 07
NOW R/AT C/O SHIVANNA
S/O MARISANNAPPA
THORENAGASANDRA VILLAGE, MATHAHALLI POST
DASANAPUR HOBLI
BANGALORE - 562 162
ALSO AT
M/S.CHENNAI FINANCE AGENCY
AKSHAYA AUTO CONSULTANT, 1ST FLOOR
OPP. CMC, T.DASARAHALLI BUS STOP
TUMKUR ROAD, BANGALORE - 560 057            ...RESPONDENT

(BY SRI.M.VINOD KUMAR, ADVOCATE)
                                                     M.F.A.No.4269/2014
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     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF THE FAMILY COURT ACT PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 22.04.2014 PASSED
BY THE VI ADDITIONAL PRINCIPAL JUDGE AT BANGALORE IN
M.C.NO.119/2014.

     THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD
AND   RESERVED    ON   07.09.2022,  COMING    ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, K.S.MUDAGAL J.,
DELIVERED THE FOLLOWING:

                         JUDGMENT

Aggrieved by the judgment and decree of dissolution of

marriage passed against her, the respondent in

M.C.No.119/2014 on the file of the VI Additional Prl. Judge,

Family Court, Bengaluru has preferred this appeal.

2. The respondent was the petitioner and the

appellant was the respondent in M.C.No.119/2014. For the

purpose of convenience the parties will be referred to

according to their ranks before the trial Court.

3. The marriage of the petitioner and respondent

was solemnized on 17.06.2007 at Okkaligara Samudaya

Bhavana, Belur Taluk, Hassan District. Out of their wedded

life, the couple begot a daughter by name Greeshma in April

2009.

M.F.A.No.4269/2014

4. The petitioner filed M.C.No.119/2014 before the

trial Court under Section 13(1)(i-a) of Hindu Marriage Act,

1955 against the respondent seeking dissolution of their

marriage. His case in brief is as follows:

That the respondent went to her parental house for

delivery of the child and thereafter despite his several efforts

she did not show inclination to return to the matrimonial

home. At the intervention of the elders though she came

back and stayed for three months in his house, she was

abusive to him and to his parents. She was not even taking

care of the child. She demanded that he should separate

from his parents making a separate house. She did not cook

for him and his family members and ultimately she left the

matrimonial home and deserted him. When he filed

M.C.No.2283/2012 she returned to his house. Therefore, he

withdrew the petition. But later he realized that she

designedly joined him to defeat the proceedings in

M.C.No.2283/2013. She again started harassing him and his

family members. She went on filing Police Complaints and

petitions for maintenance etc. Therefore, he sought decree

for dissolution of marriage on the ground of desertion.

M.F.A.No.4269/2014

5. The notice of the petition issued to the

respondent was returned with the purported endorsement

'refused'. Therefore, the trial Court placed her ex-parte and

proceeded with the matter.

6. In support of his case, the petitioner examined

himself as PW.1 and got marked Exs.P1 to P3 viz., the

wedding card, wedding photo and certified copy of the

anticipatory bail order in Crl.Misc.No.4610/2013.

7. The trial Court on hearing the petitioner's counsel

by the impugned judgment and order allowed the petition

and granted decree for divorce on the ground that the

allegations in the pleadings and the evidence of PW.1 have

gone uncontroverted.

8. The appellant/respondent contends that notice

was not at all tendered to her, the petitioner managed to get

such endorsement on the notice by playing fraud. She

contends that the RPAD cover was addressed to her parents.

But that was redirected to petitioner's own business address.

M.F.A.No.4269/2014

That itself shows that all was not well. Thus she claims that

proper opportunity was not given to her. In addition to that

she controverts the allegations of cruelty imputed to her and

contends that petitioner himself was guilty of cruelty.

9. In the petition, the respondent's address was

shown as C/o Doddappa Shetty, Gendehalli, Shanivara pete,

Belur Taluk, Hassan District. The notice available in the trial

Court records shows that subsequently that address was

scored and the postal cover was redirected to the address

M/s. Chennai Finance Agency, Akshaya Auto Consultant, Opp.

CMC, I floor, T.Dasarahalli, Tumkur Road, Bengaluru 560

057. The post office to which the notice was redirected has

returned the same with the endorsement 'refused'. Whereas

in the petition the petitioner himself contended that the

respondent was living with her parents in her parental house

at the address shown in the petition. That itself goes to show

that there was something fishy in the postal endorsement

'refused'.

10. Even before this Court, nothing is produced to

show that she was the resident of Bengaluru address shown M.F.A.No.4269/2014

in the postal cover. Whereas the petitioner was the resident

of Bengaluru. The trial Court had no material to consider

whether the filing of maintenance petition or criminal case

amounts to cruelty.

11. Under the aforesaid circumstances, the

respondent wife requires to be given an opportunity of

hearing. Therefore, the impugned order is liable to be set

aside. Hence the following:

ORDER

i) The appeal is allowed. The impugned judgment

and decree is hereby set aside.

ii) The matter is remanded to the trial Court for

fresh consideration after giving opportunity to both the

parties.

iii) The parties shall appear before the trial court on

29.09.2022 without any further notice.

iv) On such appearance of the parties, the trial Court

shall give reasonable opportunity to both the parties and

dispose of the matter as expeditiously as possible, at any M.F.A.No.4269/2014

rate, within six months from the date of appearance of the

parties.

Sd/-

JUDGE

Sd/-

JUDGE

akc