Karnataka High Court
Smt. Sushma Basavaraj Chalavadi vs Sri. Basavaraj Nagappa Chalavadi on 8 February, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:2787-DB
MFA No. 101634 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH 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. 101634 OF 2021 (MC)
BETWEEN:
SMT. SUSHMA W/O. BASAVARAJ CHALAVADI,
AGE: 30 YEARS, OCC: HOUSE HOLD,
C/O. VENKAPPA S/O. MALLAPPA KALE,
R/O. HIREKOPPA, TQ: NARGUND,
DIST: GADAG-591126.
...APPELLANT
(BY SRI. G. R. TURAMARI, ADVOCATE)
AND:
SRI. BASAVARAJ,
S/O. NAGAPPA CHALAVADI,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. BENAKANKOPPA,
TQ: NARGUND,
CHANDRASHEKAR
LAXMAN
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
DIST: GADAG-591126.
KATTIMANI
Date: 2024.02.16
12:05:45 +0530 ...RESPONDENT
(NOTICE TO RESPONDENT SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.28 (1) OF
THE HINDU MARRIAGE ACT, 1955, AGAINST THE JUDGEMENT AND
DECREE DATED 22.01.2021, PASSED IN MATRIMONIAL CASE
NO.9/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND CHIEF JUDICIAL MAGISTRATE, GADAG, ALLOWING THE
PETITION FILED U/SEC. 13 (1), (ia), (ib) OF THE HINDU MARRIAGE
ACT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
K V ARAVIND, J., DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:2787-DB
MFA No. 101634 of 2021
JUDGMENT
This appeal by wife challenging the order of decree of
divorce in M.C.No.9/2019 dated 22.01.2021 on the file of
Principal Senior Civil Judge and C.J.M., Gadag (for short,
'Trial Court').
2. The parties to this appeal are referred to as per
their rank before the Trial Court.
3. The petitioner in M.C.No.9/2019 preferred
petition u/sec.13(1) 1(a) (b) of the Hindu Marriage Act
praying to dissolve the marriage solemnized between the
petitioner and respondent-wife on 15.05.2011.
4. On service of notice, respondent-wife filed
objection admitting the marriage and denying the petition
averments. It is further contended that the petitioner was
alcoholic, family of the petitioner abused her in filthy
language and assaulted her.
5. The petitioner examined himself as PW1 and
examined another witness as PW2 and got marked Exs.P1 to
P6. The respondent has not examined any witness nor
marked any documents.
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6. The Trial Court by holding that respondent-wife
has not stepped into the witness box nor cross-examined the
witnesses, arrived at a conclusion that petitioner has proved
cruelty as well as desertion.
7. Heard learned counsel Sri G.R.Turamari for
appellant. Respondent is served and unrepresented.
8. Learned counsel for the appellant submits that
the allegations in the petition are baseless. The appellant-
wife has contested the matter by filing detailed statement of
objections. The conclusion of the Trial Court on cruelty and
on desertion is without any basis. Learned counsel further
referring to the order sheet submits that the Trial Court was
not considering the petition regularly due to lockdown
imposed and also due to notifications and SOP issued by this
Court. It is further submitted that even after lockdown was
lifted due to Covid Pandemic, the appellant could not follow
up the case and participate in the proceedings. The Trial
Court without considering the restrictions imposed due to
pandemic, has proceeded to pronounce the judgment on
22.01.2021 without granting an opportunity to the appellant.
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Thus, prays to set aside the order of the Trial Court and
remand the matter for fresh consideration to grant an
opportunity to the appellant.
9. We have perused the appeal papers and the
record.
10. The husband preferred petition u/sec.13(1) 1(a)
(b) of the Hindu Marriage Act praying to dissolve the
marriage between the appellant and the respondent. The
appellant-wife contested the proceedings by filing detailed
statement of objection. On the basis of the pleadings, the
Trial Court has framed the issues. As seen from the order
sheet, the evidence of the petitioner was closed and the
matter was posted for evidence of respondent on
16.12.2019. The petitioner filed I.A. on 16.12.2019 and
matter was adjourned to 03.01.2020 for objection. PW1 was
recalled on 17.01.2020. PW1 was absent on 16.03.2020.
Petition was adjourned to 07.04.2020. In the meantime,
lockdown was imposed due to pandemic. The notifications
and SOP issued by this Court was in operation. The petition
was adjourned for further evidence of PW1 and cross-
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examination. On 07.01.2021, petition was posted to
15.01.2021 for evidence of respondent. On 15.01.2021, the
evidence of respondent was taken as nil and posted for
argument to 16.01.2021. On 16.01.2021, petition is
reserved for judgment and judgment has been pronounced
on 22.01.2021.
11. In view of the sequence of dates stated above,
the appellant could not participate in the proceedings and
lead her evidence due to Covid pandemic and various
restrictions imposed for conducting Court proceedings and
examination of witnesses through SOP issued by this Court.
After the lockdown was lifted on 07.01.2021, evidence of the
petitioner was closed and posted for evidence of respondent
on 15.01.2021. On 15.01.2021, evidence of the respondent
was taken as nil and proceeded for argument and judgment.
We are of the view, the time provided to the appellant-wife
to lead her evidence is not sufficient considering the
pandemic situation and the various restrictions imposed by
the Government as well as by this Court through SOP. In the
facts and circumstances, we are of the view that the
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appellant is to be provided an opportunity to lead her
evidence on remand by setting aside the impugned order.
12. For the aforesaid reasons, the order of the Trial
Court is not sustainable. Hence, the following:
ORDER
i. The appeal is allowed.
ii. Order in M.C.No.9/2019 dated 22.01.2015 on
the file of Principal Senior Civil Judge and
C.J.M., Gadag is hereby set aside.
M.C.No.9/2019 is restored to its file for fresh
consideration.
iii. The Trial Court is directed to commence the
remanded proceedings from the stage of
cross-examination of PW1.
iv. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
