Karnataka High Court

Smt. Vyshnavee Vikranth vs Sri. Vikranth Jagannath on 5 December, 2023

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                                                  NC: 2023:KHC:43986-DB
                                                    MFA No. 6578/2021



                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 5TH DAY OF DECEMBER 2023

                                       PRESENT

                        THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                                          AND
                         THE HON'BLE MR JUSTICE K V ARAVIND
                 MISCELLANEOUS FIRST APPEAL NO. 6578/2021 (FC)
                BETWEEN:

                SMT. VYSHNAVEE VIKRANTH
                W/O VIKRANTH JAGANNATH
                AGED ABOUT 36 YEARS
                PRESENTLY R/AT NO.245
                I FLOOR, 6TH CROSS
                HAL STAGE, INDIRANAGAR
                BANGALORE - 560 038                        ...APPELLANT

                (BY SRI H SHANTHIBHUSHAN, ADVOCATE FOR
                    SRI SUYOG HERELE, ADVOCATE)
                AND:

                SRI VIKRANTH JAGANNATH
                S/O SRI R JAGANNATH
                AGED ABOUT 40 YEARS
Digitally
signed by K S   PRESENTLY R/AT NO.201
RENUKAMBA       2ND FLOOR, 'CHARTERED KARTHIKA'
Location:       NO.95, WHEELER ROAD EXTENSION
High Court of   BALAJI LAYOUT, COOKE TOWN
Karnataka
                BANGALORE - 560 005                       ...RESPONDENT

                (BY SRI K.SUMAN, SENIOR COUNSEL FOR
                    SRI SIDDHARTH SUMAN, ADVOCATE C/R)

                     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
                SECTION 19(1) OF FAMILY COURTS ACT PRAYING TO SET ASIDE
                THE JUDGMENT AND DECREE DATED 19.07.2021 PASSED BY IV
                ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU IN
                M.C.NO.2331/2020 ALLOWING THE PETITION FILED UNDER
                SECTION 13(1)(i-a) OF THE HINDU MARRIAGE ACT, 1955.
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                                               NC: 2023:KHC:43986-DB
                                                 MFA No. 6578/2021



     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
FINAL HEARING THIS DAY, K.S.MUDAGAL.J, DELIVERED THE
FOLLOWING:

                             JUDGMENT

Challenging the decree of divorce passed against her,

the respondent in M.C.No.2331/2020 on the file of IV

Additional Principal Judge, Family Court, Bengaluru has

preferred this appeal.

2. The appellant was the respondent and the

respondent was the petitioner in M.C.No.2331/2020 before

the trial Court. For the purpose of convenience, the parties

are referred to henceforth according to their ranks before the

trial Court.

3. The marriage of the petitioner and the

respondent was solemnized on 13.09.2007 at Mayor

Ramanathan Chettiar Hall, Chennai. The parties being Hindus

are governed by the Hindu Marriage Act, 1955 ('the Act' for

short). Out of the said wedlock, the couple were blessed with

a daughter on 07.06.2008 and a son on 17.02.2013.

4. The petitioner filed M.C.No.2331/2020 against

the respondent on 05.08.2020 seeking decree for divorce on

the ground of cruelty. The notice was issued to the

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respondent to appear before the Court on 01.10.2020. The

order sheet of the trial Court shows that on 27.01.2021 the

respondent was placed ex-parte. The petitioner was

examined as PW.1 and on his behalf, Exs.P1 to P11 were

marked.

5. The trial Court on hearing the petitioner by the

impugned judgment and decree allowed the petition and

granted decree for dissolution of marriage. The said

judgment is under challenge in this appeal.

Submissions of Sri H.Shanthibhushan, learned Counsel for the respondent/wife:

6. The trial Court acted contrary to the directions

under Standard Operating Procedure ('SOP' for short) issued

by the High Court of Karnataka during Covid-19 pandemic.

The trial Court took up the matter for hearing and disposed

of the same during Covid pandemic period. The dates and

events in the case show that the petitioner deliberately

hurried the matter during Covid-19 period and surreptitiously

obtained the decree for divorce. The trial Court without

application of mind allowed the petition simply on the ground

that the allegations made by the petitioner in his pleadings

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and in his examination in chief were uncontroverted. Section

13(1)(i-a) of the Act places responsibility on the Court to

satisfy itself about the grounds of cruelty. The allegations of

cruelty or the foundational facts are not proved by leading

acceptable evidence. The trial Court passed the judgment

and decree mechanically, contrary to the basic principles of

appreciation of evidence. An opportunity needs to be given to

the respondent/wife to meet the case of the

petitioner/husband. Thus the impugned judgment and decree

are liable to be set aside and the matter needs to be

remanded to the trial Court for fresh disposal.

7. In support of his contentions, he relies on the

following judgments:

(i) Smt.H.R.Bharathi v. P.Nagabhushan1

(ii) Smt.N.K.Sudha v. N.T.Krishnappa2

(iii) Smt.Girija v. Sri Aravind3

(iv) Mrs.Shwetha Hande v. Dr.Harish Holla4

(v) Smt.Prema.M. v Gururaj5

(vi) Smt.Neelavathi v. Mahantheshgouda6

MFA No.10579/2010 DD 01.08.2012

MFA No.2576/2014 DD 13.11.2019

MFA No.201000/2015 DD 23.07.2021

MFA No.9883/2018 DD 17.10.2019

MFA No.4564/2019 DD 27.02.2020

MFA No.100044/2021 DD 04.02.2021

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Submissions of Sri K.Suman, learned Senior Counsel appearing for Sri Siddharth Suman, learned Counsel on record for the petitioner/husband:

8. The respondent wife does not dispute service of

notice on her. For the reasons best known to her, she did not

appear before the trial Court. Even the appeal was belatedly

filed. That goes to show that by simply dragging the matter

she went on harassing the petitioner. He has taken care of

his children born out of marriage of himself and the

respondent. He has provided for their education and

entertainment also. He also funded the respondent to buy

sites and for construction of the house. After decree, the

petitioner is married and having two children out of second

marriage. The digital communication between the respondent

and the petitioner shows that the respondent was also not

interested in continuing the marriage. The conduct of the

respondent amounts to cruelty as contemplated under

Section 13(1)(i-a) of the Act. The trial Court on sound

appreciation of the evidence which went uncontraverted,

rightly returned the finding that the act of the respondent

amounts to cruelty. No purpose would be served by

reversing the judgment of the trial Court and remanding the

matter. Hence, he seeks for dismissal of the appeal.

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9. In support of his contentions, he relies on the

following judgments:

         (i)     Rakesh Raman v. Smt.Kavita7
         (ii)    Samar Ghosh v Jaya Ghosh8

10. On careful consideration of the submissions of

both side and on examination of the materials on record, the

point that arises for determination of the Court is "whether

the impugned judgment and decree for dissolution of

marriage is sustainable?"

Analysis

11. The parties are not in dispute regarding their

marriage on 13.09.2007 and they begetting two children on

07.06.2008 and 17.02.2013. It is also not disputed that both

of them are living separately since 2020. The petition for

divorce was filed on 05.08.2020 i.e. during Covid-19

pandemic period. It is also not disputed that during the

pendency of the proceedings before the trial Court, Standard

Operating Procedure (for short 'SOP') issued by the High

Court of Karnataka regarding conducting of the cases was in

force.

AIR 2023 SC 2144

(2007) 4 SCC 511

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12. Some dates and events which are relevant in the

matter are as follows:

     Sl.     Date                          Order
     No.
     1.    05.08.2020    Filing of the petition

     2.    11.08.2020    The Court issued notice to the

respondent wife for appearance before the Court on 01.10.2020.

3. 01.10.2020 The trial Court citing SOP of the High Court of Karnataka dated 27.08.2020 adjourned the matter to 21.11.2020

4. 07.10.2020 The petitioner got the matter preponed. The matter was taken on board. Adjourned to 21.11.2020

5. 21.11.2020 Adjourned the matter to 27.01.2021 as the Presiding Officer was on leave.

6. 24.11.2020 Petitioner replied through mail on 24.11.2020 at 12.36 p.m.

7. 09.12.2020 Petitioner replied through mail on 09.12.2020 at 05.08 p.m.

8. 14.12.2020 The trial Court recorded the petitioner's Counsel's submission that already the respondent is served with notice on 01.10.2020. Adjourned to 27.01.2021 for physical appearance of the parties

9. 27.01.2021 Noting that the respondent was absent, she was placed ex-parte.

Adjourned for petitioner's evidence to 15.03.2021

10. 15.03.2021 The petitioner files affidavit in lieu of examination in chief and examined as PW.1. Adjourned to 01.04.2021 for further examination of PW.1.

11. 01.04.2021 The petitioner was further examined.

For further chief of PW.1, adjourned to 07.04.2021.

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12. 07.04.2021 PW.1 was further examined. Adjourned to 17.06.2021 for arguments.

13. 17.06.2021 The petitioner produces some more documents. Posted to 24.06.2021.

14. 23.06.2021 The petitioner submits application for production of the documents through drop box.

15. 24.06.2021 The petitioner submits application for production of the documents through drop box. He was further examined through Video Conferencing.

Arguments were heard. For judgment adjourned to 09.07.2021.

16. 09.07.2021

17. 14.07.2021 Listed for judgment, but not delivered.

18. 17.07.2021

19. 19.07.2021 Judgment delivered. Allowed the petition and granted divorce decree.

13. The above referred dates and events show that

the trial Court conducted hearing including recording of the

evidence when the world was in the grip of Covid-19

pandemic and when SOP issued by the High Court of

Karnataka to regulate the conducting of the cases was in

force. No exception could be taken if the urgent cases

relating to maintenance or protection orders were taken up.

By no stretch of imagination it can be said that taking up the

case for divorce decree during pandemic period was an

extreme urgency.

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14. The next question is whether the trial Court

properly appreciated the evidence. The divorce was sought

on the ground of cruelty. The trial Court in its judgment

states that the following were grounds of alleged cruelty

inflicted by the wife:

(i) Due to the divorce of parents of the respondent,

she had mood swings. In other words the petitioner says that

she had irritability or some mental health condition.

(ii) She did not permit him the physical proximity.

(iii) Though he was interested in having third child,

the respondent underwent medical termination of pregnancy

and she forced him to undergo vasectomy.

15. As rightly pointed out by Sri H.Shanthibhushan,

learned Counsel for the respondent, in view of Section 13(1)

of the Act and Order VIII Rule 5 of CPC, the decree for

divorce cannot be granted merely because the respondent

did not contest the matter. The Court has to satisfy itself that

the grounds alleged were proved. Though the petitioner

claimed that there was divorce between the parents of the

respondent/wife, which triggered her mental health

condition, except his self serving statement, he did not

produce any proof of such divorce.

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16. Secondly the allegation of mental health

condition is very serious. Having regard to the provisions of

the Mental Healthcare Act, 2017, the Court shall not accept

such condition in the absence of acceptable evidence. The

petitioner did not produce any medical evidence or medical

records to show that the respondent was suffering mood

swings or other mental health condition.

17. So far as the allegation of medical termination of

pregnancy, except producing Ex.P7 which is Xerox copy of

discharge summary for Daycare patient purportedly issued

by Mallya Hospital, no other evidence was adduced. Ex.P7

does not indicate whose signature on the consent form for

medical termination of pregnancy was taken etc. The author

of Ex.P7 or the doctor who allegedly conducted such medical

termination of pregnancy were not examined to show on

what grounds medical termination of pregnancy was carried

on. Even as per Ex.P7 the medical termination of pregnancy

was on 13.11.2013. Thereafter the petitioner cohabited with

the respondent for about 7 years. Whether such act amounts

to condonation of alleged cruelty under Section 23 (1) (b) of

the Act should also have been considered by the trial Court.

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18. The reasoning of the trial Court runs into paras

11 to 15. The judgment in para 11 only says that there are

two points raised by the trial Court and they are considered

together to avoid repetition. Para 12 speaks of examination

of PW.1 and marking of the documents. Para 13 refers to the

judgments in Samar Ghosh's case referred to supra and

Narendra v. K.Meena9. In paras 14 and 15 of the judgment

again evidence of PW.1 is reiterated and finally in the last

sentence of para 14 and last portion of para 15, the trial

Court says that the pleadings and the evidence of PW.1 are

uncontroverted, thereby the case of the petitioner is proved.

Thus trial Court accepted petitioner's case only on the

ground that his evidence is not controverted.

19. Secondly, the trial Court further in para 15

records that the marriage is irretrievably broken down,

therefore the petitioner is entitled for decree of divorce.

Irretrievable break down of the marriage is not the ground

for granting decree for dissolution of marriage under Section

13(1) of the Act. Such power is exercised only by the Hon'ble

Supreme Court in exercise of its powers under Article 142 of

(2016) 9 SCC 455

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the Constitution. Trial Court is not vested with such power.

The impugned judgment is without application of mind and

without appreciation of the evidence or the basic principle of

evaluation of evidence. The above facts and circumstances

further show that the petitioner took advantage of Covid-19

pandemic period.

20. Relying on some alleged exchange of digital

communication, it was argued by learned Senior Counsel

that, the respondent herself in those messages has clearly

stated that she is not interested in continuation of the

marriage, therefore no purpose would be served by reversing

the judgment and remanding the matter.

21. First of all the respondent should be given an

opportunity of meeting those documents. Secondly, even as

per those communications, the respondent was proposing for

dissolution of marriage by mutual consent and she was

seeking for terms of settlement. The petitioner was asking

her to contact his Counsel. That leads to an inference that

even during pendency of the case, the petitioner has kept

the respondent under the impression that they will go for

divorce by mutual consent on settlement of terms. That may

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amount to a cause for she not appearing before the Trial

Court.

22. Having regard to the aforesaid facts and

circumstances, the judgments in Samar Ghosh and Rakesh

Raman's cases referred to supra relied by Sri K.Suman,

learned Senior Counsel cannot be justifiably applied to the

facts and circumstances of the present case. Whereas the

judgments relied on by Sri H.Shanthibhushan, learned

Counsel for the respondent/wife, clearly held that in such

cases, the respondent wife shall be given fair opportunity.

23. Needless to say that the marriage is sacrosanct

institution. The couple had 13 years of marital life and two

children. In such case, she should not be thrown out of the

said institution without being heard. Therefore it is fit case to

allow the appeal and remand the matter. Hence the

following:

ORDER

The appeal is allowed.

The impugned judgment and decree in

M.C.No.2331/2020 dated 19.07.2021 passed by IV Additional

Principal Judge, Family Court, Bengaluru is hereby set aside.

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The matter is remanded to the trial Court for fresh

consideration after giving reasonable opportunity to both the

parties.

To avoid further delay, the parties are hereby directed

to appear before the trial Court on 08.01.2024 without any

further notice.

On such appearance of the parties, the trial Court shall

dispose of the matter in accordance with law as expeditiously

as possible at any rate within six months from the date of

appearance of the parties.