Karnataka High Court
Smt. Honnamma Alias Jayalakshmi vs Ramangouda S/O. Ninganagouda ... on 24 August, 2023
Bench: S.R. Krishna Kumar, G Basavaraja
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NC: 2023:KHC-D:9447-DB
MFA No. 103337 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO. 103337 OF 2022 (FC)
BETWEEN:
SMT. HONNAMMA @ JAYALAKSHMI
W/O. RAMANGOUDA BHAGAVANTAGOUDRA,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEW KITTUR, TQ AND DIST: HAVERI,
NOW AT GUNGURKOPPA, TQ: BYADAGI,
DIST: HAVERI-581110.
...APPELLANT
(BY SRI.N.P.VIVEKMEHTA, ADVOCATE)
AND:
RAMANGOUDA S/O. NINGANAGOUDA,
BHAGAVANTAGOUDRA,
AGE: 45 YEARS, OCC: GOVT. TEACHER,
R/O: NEW KITTUR, TQ AND DIST: HAVERI-581110.
...RESPONDENT
(BY SRI.RAJASHEKHAR B.HALLI, ADVOCATE FOR C/R)
MOHANKUMAR
B SHELAR
HIGH COURT THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURTS
OF KARNATAKA
2023.08.28 ACT, 1984, PRAYING TO, SET ASIDE JUDGMENT AND DECREE OF
15:41:22 +0530
THE COURT OF THE FAMILY COURT, HAVERI, DATED 01.04.2022
PASSED IN M.C.NO.179/2020 AND GRANT THE DECREE OF DIVORCE
TO THE APPELLANT AS PRAYED IN THE PETITION BY ALLOWING THIS
APPEAL; GRANT ANY OTHER RELIEF THE HON'BLE COURT DEEMS FIT
IN THE FACTS AND CIRCUMSTANCE OF THE CASE INCLUDING COST
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
S.R.KRISHNA KUMAR J., DELIVERED THE FOLLOWING:
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MFA No. 103337 of 2022
JUDGMENT
This appeal by the wife is directed against the
impugned judgment and decree dated 1.4.2022 passed in
MC No.179/2020 by the learned Principal Judge, Family
Court, Haveri, whereby the said petition filed by
respondent/husband against appellant/wife alleging cruelty
and desertion seeking dissolution of marriage solemnized
between them on 12.04.2010 was allowed by the Family
Court by granting decree of divorce.
2. The material on record discloses that the
appellant/wife and respondent/husband were married on
12.4.2010 and minor son by name Balakrishnagouda was
born from out of the said wedlock in the year 2011 and the
said son is in the custody of the appellant/wife.
Subsequently, the respondent/husband instituted the
aforesaid proceedings against appellant/wife seeking decree
of divorce by invoking Section 13(1) (i-a) (i-b) of the Hindu
Marriage Act, 1955 alleging cruelty and desertion. The said
petition having been contested by the appellant/wife,
respondent/husband examined himself as PW1 and two
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MFA No. 103337 of 2022
witnesses were examined as PW2 and PW3 and documentary
evidence at Ex.P1 to P5 were marked on his behalf. The
appellant/wife examined herself as RW1 and documentary
evidence at Ex.R1 to R6 were marked on her behalf.
However, she did not tender herself for cross-examination
and did not adduce further oral and documentary evidence
on her behalf. Accordingly, the Family Court proceeded to
pass the impugned judgment and decree coming to a
conclusion that in the light of evidence adduced by the
respondent/husband and in the absence of evidence on
behalf of appellant/wife, respondent/husband has
successfully established the claim put-forth by him and as
such, the Family Court proceeded to allow the petition filed
by the respondent/husband by granting decree of divorce.
Aggrieved by the impugned judgment and decree passed by
the Family Court, the appellant/wife is before this Court by
way of present appeal.
3. Heard learned counsel for the appellant and
learned counsel for respondent and perused the material on
record.
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MFA No. 103337 of 2022
4. In addition to reiterating the various contentions
urged in the memorandum of appeal and referring to the
material on record, the learned counsel for the appellant
submits that due to bonafide reasons, unavoidable
circumstances and sufficient cause, the appellant/wife, who
was examined as RW1, could not tender herself for cross-
examination, which has resulted in the Family Court
accepting the claim of the respondent/husband and rejected
the claim of the appellant/wife. It is submitted that if one
more opportunity is provided to the appellant/wife to
tender/subject herself for cross-examination by setting aside
the impugned judgment and decree and remitting the matter
back to the Family Court, she would appear before the
Family Court and tender herself for cross-examination and
necessary direction in this regard may be issued to the
Family Court for reconsideration of the matter afresh in
accordance with law.
5. Per Contra, learned counsel for the
respondent/husband would support the impugned judgment
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MFA No. 103337 of 2022
and decree and submits that there is no merit in the appeal
and same is liable to be dismissed.
6. A perusal of the material on record including the
impugned judgment and decree will indicate that the main
ground on which the Family Court has accepted the claim of
the respondent/husband and rejected the claim of the
appellant/wife is that she did not tender herself for cross-
examination, despite examining herself as RW1 and there
was no oral and documentary evidence on record to
substantiate her defence. However, in view of specific
assertion by the appellant and inability and omission on the
part of the appellant/wife to tender herself for cross-
examination as RW1 was due to bonafide reasons,
unavoidable circumstances and sufficient cause, by adopting
the justice oriented approach and in order to provide one
more opportunity to the appellant/wife to tender herself for
cross-examination and also to enable the parties to adduce
additional evidence in support of their respective claims, we
deem it just and appropriate to set aside the impugned
Judgment and Decree and remit the matter back to the
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Family Court for re-consideration afresh in accordance with
law within a stipulated time frame.
7. In the result, we pass the following :
ORDER
(i) Appeal is hereby allowed.
(ii) The impugned Judgment and Decree dated
01.04.2022 passed in M.C.No.179/2020 by the
Principal Judge, Family Court, Haveri is set
aside and matter is remitted back to the Family
Court to reconsider the same afresh in
accordance with law.
(iii) The appellant/wife is directed to tender herself
for cross-examination by the respondent/wife
on the date to be fixed by the Family Court in
this regard.
(iv) Both parties are directed to appear before the
Family Court on 25.09.2023 without awaiting
notice from the Family Court.
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MFA No. 103337 of 2022
(v) Liberty is reserved in favour of both parties to
adduce oral and documentary evidence in
support of their claims.
(vi) The Family Court is directed to dispose of the
petition within six months from the date of
receipt of certified copy of this judgment.
All rival contentions and all aspects of the matter are
kept open and no opinion is expressed on the same.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
