Karnataka High Court
Sri.Muttappa vs Smt.Basamma And Anr on 1 February, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
-1-
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MFA No.201736 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCL. FIRST APPEAL NO.201736 OF 2019 (FC-DIV)
BETWEEN:
SRI MUTTAPPA
S/O ERAPPA DESUNAGI
AGED ABOUT: 36 YEARS
OCC: DRIVER CUM CONDUCTOR
R/O KSRTC DIVISION NO.2
TOKEN NO.599, VIJAYAPURA
DIST: VIJAYAPURA - 586 102.
...APPELLANT
(BY SRI GOPALKRISHNA B. YADAV, ADVOCATE)
Digitally signed AND:
by SWETA
KULKARNI
Location: HIGH 1. SMT BASAMMA
COURT OF
KARNATAKA W/O MUTTAPPA DESUNAGI
AGED ABOUT: 27 YEARS
OCC: HOUSEHOLD
R/O TANGADAGI VILLAGE
TQ: MUDDEBIHAL
DIST: VIJAYAPURA - 586 102.
2. SRI VEERABHADRAYYA
S/O MURAGAYYA GANACHARI
AGED ABOUT: 31 YEARS
OCC: AGRICULTURE
R/O TANGADAGI VILLAGE
TQ: MUDDEBIHAL
-2-
NC: 2024:KHC-K:1184-DB
MFA No.201736 of 2019
DIST: VIJAYAPURA - 586 102.
...RESPONDENTS
(BY SRI ARUNKUMAR AMARGUNDAPPA, ADVOCATE FOR R1;
R2 DECEASED AND NOTICE IS DISPENSED WITH TO BRING
THE LRS OF DECEASED R2)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, PRAYING TO ALLOW THIS APPEAL AND SET
ASIDE THE JUDGMENT AND ORDER DATED 14.06.2019,
PASSED IN M.C.NO.128/2018 ON THE FILE OF THE I ADDL.
PRL. JUDGE, FAMILY COURT AT VIJAYAPURA AND TO PASS
ANY OTHER APPROPRIATE ORDERS, IN THE INTEREST OF
JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed calling in question the judgment
and decree dated 14.06.2019 in Matrimonial Case
No.128/2018 on the file of the I Addl. Principal Judge,
Family Court, Vijayapura [for short, 'the Family Court']. The
Family Court, by the impugned judgment and decree, has
dismissed the appellant's application under Section
13(1)(i)(ia)(ib) of the Hindu Marriage Act, 1955. The Family
Court, on appreciation of the appellant's ocular and
documentary evidence, has opined that the appellant has
not placed on record even bare minimal details from which
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either cruelty or adultery could be inferred against the first
respondent.
2. The appellant, while admitting that both he and
first respondent have two children from wedlock, has filed
the petition for dissolution of marriage asserting that the
first respondent was very adamant that he must set up a
separate residence at Vijayapura and when he set up such
residence, the first respondent refused to look after him with
love and care. The appellant has also alleged that the first
respondent was living in adultery with Sri Veerabhadrayya
S/o Muragayya Ganachari [who was arrayed as second
respondent before the Family Court as also in the present
appeal but who is now reported to be dead].
3. The respondents though served have remained
ex parte before the Family Court. The appellant, to
substantiate his case on cruelty by the first respondent, has
examined himself as P.W.1 and marked Exs.P.1 to P9, which
are essentially the details of the pleadings in Criminal
Miscellaneous No.374/2016 filed under Section 125 of
Cr.P.C., the legal notice caused to the first respondent, a
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complaint lodged with the jurisdictional police and a
reference thereof to the Mahila Sahayavani Kendra.
4. The learned counsels for the appellant and the
first respondent are categorical that if there is another
opportunity to lead evidence, the parties will lead further
evidence to establish their respective cases. The
circumstances of the case are considered. The appellant is
certain that he can sustain allegations of cruelty and
adulterous life.[sic] Significantly, the first respondent, who
remained absent before the Family Court, is categorical
that the allegations made against her are false and if the
proceedings in Crl.Misc.No.374/2016 are dismissed, it is for
reasons beyond her control and that no adverse inference
can be drawn from the dismissal.
5. With the appellant and respondent seeking
vindication of their respective cases, and neither the
evidence nor pleadings being complete inasmuch as the
first respondent has remained ex parte, this Court is of the
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considered view that for complete and effective adjudication
the impugned judgment and decree must be set aside and
the proceedings restored to the Family Court with liberty to
the first respondent to file pleadings and liberty to both the
appellant and the respondent to lead further evidence to
substantiate their respective cases. In the light of the afore,
the following:
ORDER
[i] The appeal is allowed in part and the
impugned judgment and decree in MC No.
No.128/2018 are set aside, and the
proceedings restored to the Family Court for a
decision on merits with the liberty to the first
respondent to file pleadings and liberty to
both the appellant and first respondent to
lead evidence.
[ii] The parties shall appear before the Family
Court without waiting further notice on
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04.03.2024, and the registry shall send the
trial Court records forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
BL
Ct;Vk
