Smt.Rajeshwari Alias Pushpalatha vs Gopal S/O Chandrakant Marigoudra
2024 Latest Caselaw 3636 Kant

Karnataka High Court

Smt.Rajeshwari Alias Pushpalatha vs Gopal S/O Chandrakant Marigoudra on 7 February, 2024

Author: S G Pandit

Bench: S G Pandit

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                                                                MFA No.100448 of 2021




                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                   DATED THIS THE 7TH DAY OF FEBRUARY, 2024

                                                    PRESENT

                                      THE HON'BLE MR JUSTICE S G PANDIT

                                                       AND

                                      THE HON'BLE MR JUSTICE K V ARAVIND

                              MISCELLANEOUS FIRST APPEAL NO.100448 OF 2021 (FC)

                           BETWEEN:
                           SMT.RAJESHWARI @ PUSHPALATHA
                           W/O. GOPAL MARIGOUDRA,
                           AGE. 25 YEARS, OCC. HOUSEHOLD,
                           R/O. CHOUDESHWARI BADAVANE,
                           MEDLERI ROAD, RANEBENNUR,
                           DIST. HAVERI-581115.
                                                                         ...APPELLANT
                           (BY SRI. K L PATIL, ADVOCATE)

                           AND:

                           GOPAL
                           S/O. CHANDRAKANT MARIGOUDRA
           Digitally
           signed by K M
           SOMASHEKAR
                           AGE. 30 YEARS, OCC. MECHANIC,
                           NO.GRADE 2, HESCOM HAVERI,
KM
SOMASHEKAR Date:
           2024.02.13
           12:36:23
           +0530



                           R/O. KEB QUARTERS HAVERI,
                           DIST. HAVERI-581110.
                                                                        ...RESPONDENT
                           (BY SRI. VIDYASHANKAR G. DALWAI, ADVOCATE)

                                 THIS MFA IS FILED U/S.19(1) OF THE FAMILY COURT ACT,
                           AGAINST THE JUDGMENT AND DECREE DATED 02.02.2021,
                           PASSED IN MATRIMONIAL CASE NO.62/2020 ON THE FILE OF
                           THE FAMILY COURT HAVERI, ALLOWING THE PETITION FILED
                           U/SEC. 13(1)(IA) AND (III) OF THE HINDU MARRIAGE ACT,
                           1955.
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                                      NC: 2024:KHC-D:2665-DB
                                       MFA No.100448 of 2021




     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:

                         JUDGMENT

Though this matter is listed for Admission, with the

consent of the learned counsel for the parties, the same

is taken up for final disposal.

2. The appellant-wife is before this Court in this

appeal under Section 19(1) of the Family Courts Act,

1984, questioning the correctness and legality of the

judgment dated 02.02.2021 in M.C. No.62/2020 on the

file of the Family Court, Haveri, by which the petition filed

by the respondent-husband under Section 13(2)(iii) of

the Hindu Marriage Act, 1955 (for short, 'the 1955 Act')

seeking dissolution of marriage is allowed.

3. Heard Sri. K.L.Patil, learned counsel for the

appellant-wife, and Sri. Vidyashankar G.Dalwai, learned

counsel for the respondent-husband. Perused the appeal

papers.

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4. Learned counsel, Sri. K.L.Patil for the

appellant-wife would submit that the judgment of the

Family Court granting decree of divorce is unsustainable

and is passed without providing sufficient opportunity to

the appellant-wife. Learned counsel would submit that,

initially, the petition under Section 13(2)(iii) of the 1955

Act was filed before the learned Senior Civil Judge at

Haveri, and on establishment of Family Court at Haveri,

the petition was transferred to the Family Court, Haveri,

under the Notification dated 30.04.2020 issued by the

Government and the same is recorded in the order sheet

on 30.05.2020. Learned counsel would submit that due to

COVID-19 Pandemic, there was lockdown and as such,

the appellant-wife could not participate in the

proceedings. Further, the learned counsel would point out

from the order sheet that on 31.08.2020, the Family

Court issued court notice to both the parties; thereafter,

by order dated 06.10.2020, the Court issued notice to the

learned counsel for the parties; as the notices were not

served, on 08.01.2021, the Family Court ordered

NC: 2024:KHC-D:2665-DB

re-issuance of notice to the respondent (appellant

herein); the order dated 01.02.2021, records that

respondent refused the court notice; thereafter, on

02.02.2021 the petition is allowed. Learned counsel

would submit that at the stage of transfer from Civil

Judge (Sr. Dn.) Court to Family Court, P.W.1 had filed his

affidavit-evidence and it was posted for cross-

examination. At that stage, the petition stood transferred

to the Family Court at Haveri, and thereafter due to

COVID-19 Pandemic, the appellant-wife could not

participate in the proceedings and the appellant-wife was

not served with the notice issued by the Family Court on

transfer. Thus, the learned counsel would pray for an

opportunity to the appellant-wife to participate in the

proceedings.

5. Learned counsel for the appellant-wife taking

us through the judgment of the Family Court would

submit that the Family Court proceeded to allow the

petition only on the ground that there is no cross-

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examination of P.W.1. Further, he would also submit that

the Trial Court committed a grave error in drawing an

adverse inference for not filing medical examination

report. Further, the learned counsel would submit that

there is no material or evidence to establish that the

appellant-wife suffers from any incurable mental illness.

Thus, the learned counsel would pray for allowing the

appeal and to remit the matter to the Family Court for

fresh consideration.

6. Per contra, Sri. Vidyashankar G.Dalwai,

learned counsel for the respondent would support the

order of the Family Court and would further submit that

the Family Court had directed the appellant-wife to get

medically examined and file report, but she failed to file

the medical report and as such, the Family court has

rightly drawn an adverse inference against the appellant-

wife that, since the appellant-wife was incapable of

performing the matrimonial obligations, the same would

NC: 2024:KHC-D:2665-DB

amount to cruelty. Thus, the learned counsel would pray

for dismissal of the appeal.

7. Having heard the learned counsel for the

parties and on perusal of the appeal papers including the

Trial Court records, the only point which falls for

consideration in this appeal is,

Whether the judgment under appeal needs interference?

8. The answer to the above point would be in the

affirmative for the following reasons:

(a) The marriage of the appellant and the respondent,

which was solemnized on 28.06.2012, is not in

dispute in this appeal.

(b) The respondent-husband filed a petition under

Section 13(2)(iii) of the 1955 Act seeking dissolution

of marriage between him and the appellant-wife. On

service of summons, the appellant-wife appeared

before the Family Court and filed her objections to

the petition. It is pertinent to note that, initially, the

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petition for dissolution was filed before the learned

Senior Civil Judge at Haveri. On establishment of

the Family Court at Haveri, in terms of Government

Order dated 30.04.2020 and order of District and

Sessions Judge, dated 29.05.2020, the petition

stood transferred to the Family Court at Haveri. In

the meanwhile, lockdown was declared due to

COVID-19 Pandemic. Both the appellant and the

respondent could not participate in the proceedings.

As could be seen from the order sheet, as the

appellant and the respondent were continuously

absent, the Family Court, on 31.08.2020, ordered to

issue court notice to both the parties; that, on

06.10.2020, the Family Court issued court notice

also to the counsels who appeared for the parties

before the Trial Court. Further perusal of the order

sheet would indicate that on 08.01.2021 as the

appellant was not served with the court notice, the

Family Court re-issued the notice. The order sheet

dated 01.02.2021 indicates that the Court recorded

NC: 2024:KHC-D:2665-DB

that the appellant-wife had refused the court notice

and, hence it proceeded to post the petition on

02.02.2021 for judgment on which date, the Trial

Court pronounced the judgment allowing the

petition and dissolving the marriage between the

appellant and the respondent.

(c) Before the learned Senior Civil Judge at Haveri, the

respondent had filed an affidavit-evidence and the

case was posted for cross-examination of P.W.1. On

transfer of petition to the Family Court at Haveri,

and due to COVID-19 Pandemic, the appellant-wife

could not participate in the proceedings, and she

could not cross-examine P.W.1. Moreover, the case

is not posted for cross-examination of P.W.1. The

Family Court, without there being proper service of

notice on the appellant-wife, could not have

proceeded to post the petition for judgment that too

when the appellant-wife had filed objection to the

petition filed under Section 13(2)(iii) of the 1955

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Act. On careful perusal of the entire order sheet, we

are of the opinion that the appellant-wife had no

opportunity to participate in the proceedings during

the COVID-19 Pandemic period. The Trial Court

committed a grave error in observing that the

appellant-wife failed to cross-examine P.W.1 and

thereby admitting the evidence of P.W.1. When the

appellant-wife had no opportunity to participate in

the proceedings during COVID-19 Pandemic, the

question of cross-examining P.W.1 would not arise.

(d) Further, merely because the appellant-wife had not

filed medical examination report, in the absence of

any other material, the Family Court could not have

come to the conclusion that the respondent is

mentally ill. The petitioner-husband examined

himself as P.W.1, and has not examined any other

independent or expert witness or has produced any

medical certificate or medical evidence to prove that

the appellant-wife is mentally ill. The Family Court,

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NC: 2024:KHC-D:2665-DB

without there being any material to come to the

conclusion that the appellant-wife suffers from any

mental illness, could not have come to the

conclusion that the appellant-wife suffers from

mental illness. Merely on the basis of the statement

of the respondent-husband in his evidence that, the

appellant-wife has failed to perform her matrimonial

obligation, the Family Court is not justified in

coming to the conclusion that the same would

amount to cruelty. The allegation of cruelty shall

have to be established based on cogent material

evidence which is absent in the present case.

9. In the above circumstances, we deem it

appropriate to set aside the judgment under appeal and

to remit the matter to the Family Court at Haveri for fresh

consideration. Hence, we pass the following:

ORDER

i) The appeal is allowed.

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ii) The judgment and order, dated 02.02.2021, passed in M.C. No.62/2020 by the Family Court, Haveri, is hereby set aside.

iii) The petition in M.C. No.62/2020 is remitted to the Family Court at Haveri for fresh consideration. The parties are at liberty to lead their evidence.

iv) The parties to the proceedings shall appear before the Family Court at Haveri on 15.03.2024.

v) Registry is directed to send the trial court records to the Family Court, Haveri, forthwith.

Sd/-

JUDGE

Sd/-

JUDGE

KMS