Smt Ashwini vs Sri Nagaraj B C
2023 Latest Caselaw 2498 Kant

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                                               MFA No. 6982 of 2019




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 23RD DAY OF MAY, 2023

                                   PRESENT
                   THE HON'BLE MR JUSTICE ALOK ARADHE
                                       AND
              THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
            MISCELLANEOUS FIRST APPEAL NO. 6982 OF 2019 (FC)
            BETWEEN:

            SMT ASHWINI,
            W/O NAGARAJ B.C.,
            D/O GANESHA ACHARYA,
            AGED ABOUT 26 YEARS,
            WORKING AT TITANIC,
            WATCH COMPANY, BANGALORE,
            R/O MELGATTA, KIGGA POST,
            SHRINGERE TALUK,
            CHIKKAMAGALURU DISTRICT.
                                                       ...APPELLANT
            (BY SRI CHANDRASHEKAR C., ADVOCATE)
            AND:
Digitally
signed by   SRI NAGARAJ B. C.,
PRAMILA G   S/O CHANDRAYYA ACHARYA,
V
Location:   AGED ABOUT 35 YEARS,
HIGH        MECHANIC,
COURT OF
KARNATAKA   C/O K. M. ARUN KUMAR,
            S/O MANJAPPA K. KOTHWAL,
            PUTTANANJAPPANA ROAD,
            SIGEHATTI, SHIVAMOGGA.
                                                     ...RESPONDENT
                 THIS MFA IS FILED UNDER SECTION 19(1) OF THE
            FAMILY COURTS ACT AGAINST THE JUDGMENT AND DECREE
            DATED 28.06.2019, PASSED IN MC NO.233/2018, ON THE FILE
            OF THE PRINCIPAL JUDGE, FAMILY COURT, SHIVAMOGGA,
            ALLOWING THE PETITION FILED UNDER SECTION 13(1)(1a) OF
            THE HINDU MARRIAGE ACT.
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                                                 MFA No. 6982 of 2019




    THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:
                              JUDGMENT

Heard the learned counsel for the appellant.

2. Though the respondent is served, none has

represented the respondent. Respondent is also not present

before the Court.

3. This appeal is filed under Section 19 of the Family

Courts Act, 1984, against the impugned judgment and decree

passed in M.C.No.233/2018 on the file of Family Court,

Shivamogga.

4. The brief facts of the case are as under:

The Respondent/husband filed the petition seeking

dissolution of marriage alleging cruelty by his wife, who is the

appellant before this Court. Materials on record would reveal

that the marriage was solemnized on 26.05.2017. The

appellant/wife appeared before the Family Court and filed

statement of objections disputing the allegations made against

her. The petition was set down for trial. On 10.04.2019 the

petitioner/husband led evidence by filing an affidavit.

MFA No. 6982 of 2019

Thereafter, at the request of the learned counsel for the

respondent/wife, the case was adjourned. Even on the next

date the matter was adjourned at the request. Again the case

was called on 14.06.2019. On that day the case was adjourned

to 21.06.2019. On 21.06.2019 when the case was called for

cross-examination of the petitioner who was present before the

Court, the learned counsel for the respondent was not present

and the Court has recorded that there is no cross-examination

to the petitioner and posted the case for arguments on

26.06.2019. Thereafter, the petitioner was heard on

21.06.2019 and there was no representation for the respondent

on that day and the case was posted for pronouncement of the

judgment. On 28.06.2019, in terms of the impugned judgment

and decree, the petition was allowed and marriage between the

petitioner and respondent was dissolved by decree of divorce.

5. Aggrieved by the said judgment and decree

respondent/ wife is before this Court.

6. Heard the learned counsel for the appellant and

perused the records.

MFA No. 6982 of 2019

7. Learned counsel appearing for the appellant would

submit that though the case was adjourned after 10.04.2019

on three occasions to enable the respondent to cross-examine

the petitioner, on account of inadvertent mistake, the advocate

for the respondent had noted the adjourned date of hearing as

29.06.2019 instead of 21.06.2019. For this reason, the learned

counsel for the respondent/wife was not before the Court on

21.06.2019 when the case was called for cross-examination of

the petitioner. He would further submit that the counsel was

not aware that the case was posted on 21.6.2019 for hearing

as he had carried the bonafide impression that the case is

posted on 29.06.2019. Under these circumstances, he urged to

set aside the judgment and decree and to remand the matter

to the Family Court for adjudication.

8. This Court has perused the records. It is to be

noticed from the records that from 21.06.2019, the Court has

passed an order that there is no cross-examination as there

was no representation for the respondent/wife and accordingly,

the case was adjourned to 26.06.2019 for arguments. On that

day after hearing the learned counsel for the petitioner the

matter was reserved for judgment. In terms of the impugned

MFA No. 6982 of 2019

judgment and decree dated 28.06.2019, the petition was

allowed. To a pointed question put by the Court to the counsel

for the appellant, learned counsel submitted that the

respondent has not married subsequent to the dissolution of his

earlier marriage. It is to be noticed that the wife has filed

statement of objection denying the allegation made in the

petition. It appears that the learned counsel for the wife before

the Family Court had noted the date of hearing as 29.06.2019

by mistake. For the mistake of the counsel, the party should

not suffer. It is also to be noticed that the judgment is

delivered in a short span of eight days after the evidence of the

petitioner was closed. Though that itself is not an error,

considering the fact that the dispute is between the husband

and wife and the husband is seeking dissolution of marriage on

the ground of cruelty and desertion, this Court is of the view

that opportunity should be given appellant/wife to contest the

matter on merits.

9. Under these circumstances, this Court is of the view

that the impugned judgment and decree have to be set aside

and the matter has to be remitted for fresh consideration in

accordance with law.

MFA No. 6982 of 2019

10. This Court has not expressed anything on the

merits of the matter. The Family Court shall afford an

opportunity to the respondent-wife to cross-examine the

petitioner and to lead her evidence if any, and thereafter shall

decide the petition on merits.

11. Hence the following:

ORDER

(i) The appeal is allowed in-part.

(ii) The impugned judgment and decree dated

28.06.2019 on the file of Family Court, Shivamogga

are set aside and the matter is remitted back to the

Family Court, Shivamogga for fresh consideration in

accordance with law.

Sd/-

JUDGE

Sd/-

JUDGE

GVP