Karnataka High Court
Smt. Anu Jain vs Sri. Dhareshwar G.M on 4 June, 2024
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MFA No.2297/2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL NO.2297/2020 (FC)
BETWEEN:
SMT. ANU JAIN
W/O SRI. DHARESHWAR G.M.
AGED ABOUT 33 YEARS
R/AT NO.TF-1, INCLOVER KRISH
NO.40 (BBMP NO.13/40)
HSR LAYOUT, SECTOR 4
BANGALORE 560 102.
...APPELLANT
Digitally signed (BY SMT. REVATHY ADINATH NARDE, ADV.,)
by RUPA V AND:
Location:
HIGH COURT SRI. DHARESHWAR G.M.
OF
S/O SRI. G.M. UDAYASHANKAR
KARNATAKA
AGED ABOUT 34 YEARS
R/AT NO.404, SL GARDEN
LIND ROAD, SHESHADRIPURAM
BANGALORE 560020.
...RESPONDENT
(BY SRI. N. KUMAR, ADV.,)
THIS MFA IS FILED U/S.19(1) OF FAMILY COURTS ACT, 1984,
AGAINST THE JUDGMENT AND DECREE DT.02.08.2019 PASSED IN MC
NO.6362/2018 ON THE FILE OF THE II ADDITIONAL PRL. JUDGE,
FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED
U/S.13(1)(i-a) OF THE HINDU MARRIAGE ACT.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:
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MFA No.2297/2020
JUDGMENT
Challenging the judgment and decree of divorce passed
against her, the respondent in M.C.No.6362/2018 on the file of
II Additional Principal Judge, Family Court, Bengaluru, (for
short, 'the trial Court'), has preferred this appeal.
2. The appellant was the respondent and the
respondent in this appeal was the petitioner in
M.C.No.6362/2018 before the trial Court. For the purpose of
convenience, the parties are referred to henceforth according to
their ranks before the trial Court.
3. Brief facts of the case are that the respondent-wife
is a graduate, employed in private company and the petitioner-
husband is a software engineer working in private company.
Both the respondent and petitioner studied in Jindal Public
School, Bengaluru. Thereafter, they developed acquaintance and
later they decided to marry and their marriage was solemnized
on 18.05.2009. Out of the wedlock, a female child is born on
27.07.2013. The petitioner and respondent were living happily
for some time. Thereafter, they shifted to Canada on account of
petitioner's employment and stayed there between June 2016 to
May 2017. During such stay, they decided to purchase a
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residential apartment in Bengaluru, accordingly, both of them
pooled the money and purchased residential apartment. It is
also alleged that the petitioner and respondent jointly availed
housing loan and they paid EMIs. Thereafter, they started
residing in the said apartment along with their daughter.
4. Petitioner contended that in the initial days of
marriage, the respondent performed her duties and obligations
towards the petitioner as well as towards the daughter sincerely,
but after some time she started threatening the petitioner,
subjected him to utmost mental and other forms of cruelty. In
April 2014, the petitioner and respondent moved to a rented
house, which is away from the house of the parents of
petitioner. The petitioner used to take care of the daughter both
in the morning and evening. During the said period, a maid
(nanny), who was taking care of the baby, was stealing and the
petitioner caught her, but the mother-in-law of the petitioner
stepped-in and supported the maid. The said maid continued to
take care of the baby and insisted the petitioner to cooperate.
Similarly, in July 2015, the petitioner shared an e-mail to the
sister of respondent and informed interference of mother-in-law.
In August 2015, the respondent walked out of the matrimonial
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home along with the daughter and started residing separately in
the pretext that the petitioner advised her father not to lend
money to her brother and he paid Rs.1.5 lakh to her brother and
he has been incommunicado. It is further averred that in March
2016, the petitioner and respondent planned to go to Canada
and accordingly they started to save money to repay the loan
amount, however the respondent has spent huge amount on her
clothing, when that was questioned, the respondent walked out
from the matrimonial home and used to blackmail the petitioner.
It is also alleged that during the stay at Canada, the friends of
petitioner helped the respondent to take care of the daughter,
even then, the behaviour of the respondent was rude. In
October 2016, the respondent got her work permit and found a
job, at that time the petitioner used to pick and drop the child
from the day-care. In November 2016, the petitioner wished to
get his parents on international trip and accordingly the parents
joined them. At that time, the petitioner requested the
respondent to lend money to facilitate the trip of his parents, for
which she declined and fought with the petitioner for spending
money on his parents. Similarly, in the month of November
2016, the petitioner intend to take entire family to the
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restaurant, at that time, the respondent decided not to talk to
them and skipped dinner, due to such conduct, the parents of
the petitioner decided to return back to India. It is further
averred that in March 2017, one day the respondent brain
washed her daughter and made her to believe that the mother
of the petitioner used to beat her terribly, therefore, she should
never talk to her grandmother. The said words have been
uttered by the petitioner's daughter to him, however, the
daughter of the couple was very fond of her grandparents.
When he confronted the respondent about such mind poisoning,
she started threatening the petitioner that she would commit
suicide. It is also averred that in June 2017, the petitioner
discussed the divorce option with the respondent and suggested
for counseling, for which the respondent refused. On 23rd
November 2017, the respondent picked up quarrel with co-sister
and insulted other family members. On 14.01.2018, the
respondent locked herself in room with knife from the kitchen
and threatened of committing suicide, which compelled the
petitioner to call police. The police counseled the respondent
later. It is also contended that the respondent has failed to pay
EMIs, which she was required to pay and the same has been
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paid by the petitioner. The respondent was in the habit of
threatening the petitioner of committing suicide and implicating
him with false case. It is further contended that the acts of the
respondent caused immense and unbearable mental harassment
to the petitioner. The petitioner has completely shattered and
the matrimonial relations have irretrievably broken down and
the respondent and petitioner are living separately from
28.07.2018. Hence, the petitioner sought for dissolution of
marriage on the ground of cruelty.
5. Notice of the proceedings before the trial Court have
been served on the respondent-wife, she remained absent and
placed exparte.
6. The Trial Court recorded the evidence of the
petitioner. The petitioner examined himself as PW-1 and got
marked documents as Exs.P-1 to P-11. The Trial Court, on
hearing the petitioner, held that the respondent-wife has
subjected the petitioner to cruelty and allowed his petition
dissolving the marriage solemnized between the parties on
18.05.2009. Being aggrieved by the impugned exparte
judgment and decree of the Trial Court, the respondent-wife is
in appeal.
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7. Smt.Revathy Adinath Narde, learned counsel for the
respondent submits that the Trial Court has committed grave
error in allowing the petition filed by the petitioner-husband on
the ground of cruelty. The petitioner has neither pleaded the
allegation of cruelty as required nor adduced acceptable
evidence with regard to the same. It is submitted that if the
pleading and evidence on record is considered as it is, the
petitioner has failed to prove the grounds of cruelty. Hence, the
impugned judgment and decree of the Trial Court is liable to be
set aside. It is further submitted that when both the petitioner
and respondent were living together, the petitioner,
misrepresenting to the respondent-wife, filed the divorce
petition. It is further submitted that on 12.04.2019 the
pregnancy of respondent-wife was medically terminated, at that
time the petitioner and respondent were living together. Hence,
cause of action alleged in the petition is false. Though the
petitioner and respondent were living together, the petitioner
showing some different address in the petition, manipulated
service of notice. It is further submitted that when the
respondent-wife questioned the petitioner with regard to filing of
petition, he informed that he would solve the issue by
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withdrawing the petition. Hence, she could not appear before
the Trial Court. She further submits that the wife is required to
be provided fair opportunity to contest the petition which
contains false allegations. It is also submitted that in
W.P.No.2844/2024, this Court has granted Rs.40,000/- monthly
maintenance payable by the petitioner-husband to his minor
daughter which clearly indicates that the petitioner-husband has
neglected the wife and her daughter. However, a contrary claim
is made in the petition for dissolution of marriage. Hence, she
seeks to provide an opportunity to place the evidence before the
Trial Court. She further submits that a time frame may be fixed
for disposal of the petition by the Trial Court on providing
opportunity to the wife to file her objections and to adduce
evidence. Placing reliance on the judgments of this Court in the
cases of 'SMT.GIRIJA v. ARAVIND' in MFA
No.201000/2015 disposed of on 23.07.2021 and
'SMT.VYSHNAVEE VIKRANTH v. SRI.VIKRANTH
JAGANNATH' in MFA No.6578/2021 disposed of on
05.12.2023 she submits that even the entire pleading and
evidence is considered, the petitioner-husband has failed to
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prove the grounds of cruelty. Hence, she seeks to allow the
appeal by setting aside the exparte judgment.
8. Per contra, Sri.N.Kumar, learned counsel appearing
for the petitioner-husband submits that despite service of
notice, the respondent-wife remained absent before the Trial
Court and now she cannot contend that she may be provided
with an opportunity to defend the case. It is submitted that the
respondent-wife has given incorrect facts in the memorandum of
appeal with regard to the purchase of apartment, payment of
EMIs, etc. It is falsely stated that the petitioner-husband is not
paying any maintenance to the child, in fact, the petitioner-
husband is taking care of the needs of the minor child by paying
maintenance regularly. It is further submitted that the Trial
Court, considering the gravity of the mental cruelty inflicted by
the respondent-wife, has passed the impugned judgment and
decree by granting the decree of dissolution of marriage which
does not call for any interference. Hence, he seeks dismissal of
the appeal.
9. On hearing both side and examining the material on
record, the point that arise for consideration in this appeal is:
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"Whether the impugned judgment and decree of
the Trial Court calls for any interference in the present
appeal?
ANALYSIS
10. The parties to the proceedings do not dispute that
they have studied together in Jindal Public School, developed
acquaintance and got married on 18.05.2009 and out of the
wedlock, a female child is born. The material available on
record indicates that the parties to the proceedings were
residing separately in the initial days of their married life and
thereafter, they shifted to Canada and stayed there till May
2017. During the said period, the petitioner and respondent
jointly purchased an apartment and are paying EMIs to the
Bank, which lent the loan.
11. The petitioner-husband asserted that the
respondent-wife has caused mental cruelty to him and his family
members by pointing out various instances of cruelty. The
assertion of cruelty in the petition filed under Section 13(1)(i-a)
of the Hindu Marriage Act, 1955 has been reiterated in his
examination-in-chief which is filed by way of an affidavit before
the Trial Court by him.
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12. Judgment and decree in question is passed placing
the respondent exparte. Learned counsel for the respondent-
wife has produced medical records along with a memo dated
09.06.2020 which indicate that the wife was admitted in to the
hospital on 12.04.2019 for medical termination of pregnancy.
Thereby the contention of the learned counsel for the wife that
the petitioner-husband's statement in the pleading that the
petitioner and respondent are living separately since 28.07.2018
prima facie appears to be incorrect. The materials available on
record indicate that the respondent-wife was in matrimonial
home when the petition was filed for dissolution of marriage.
Hence, contention that on the assurance of the petitioner-
husband, she did not appear before the Trial Court and her non-
appearance before the Trial Court to contest the case is for the
bona fide reasons can be accepted.
13. This Court does not intend to record any finding with
regard to the merits of the case in view of the fact that the
respondent-wife could not attend the proceedings before the
Trial Court and if an opportunity is provided to the wife, it would
meet the ends of justice. Having regard to the fact that the
couple have led married life for more than 9 years and have a
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daughter, it is not fair to throw her out unheard. Therefore, it
would be just and appropriate to set aside the impugned
judgment and decree and remand the matter to the Trial Court
with a direction to provide opportunity to the respondent-wife to
file objections and adduce evidence. It is also open for the
parties to explore the possibility of amicable resolution of the
dispute before the Bangalore Mediation Centre.
14. The judgments relied on by the learned counsel for
the respondent-wife referred to supra, are not considered as the
matter is being remitted back to the trial Court for
reconsideration on merits after providing opportunity to the
parties to the proceedings and this Court has not recorded any
findings on the merits of the case. Keeping in mind the nature of
proceedings and the nature of dispute between the parties, we
are of the considered view that the wife is entitled for an
opportunity to defend the proceedings before the trial Court.
Hence, the following:
ORDER
The appeal is allowed. The impugned judgment and
decree dated 02.08.2019 in M.C.No.6362/2018 passed by
the II Additional Principal Judge, Family Court, Bengaluru,
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is hereby set aside. The matter is remanded to the trial
Court for fresh consideration after giving reasonable
opportunity to both parties, in accordance with law.
To avoid further delay, the parties are hereby directed
to appear before the trial Court on 01.07.2024 without
further notice.
On such appearance, the trial Court shall give
reasonable opportunity to both parties and dispose of the
matter as expeditiously as possible at any rate within a
period of six months from the date of appearance of the
parties.
Both parties shall cooperate for expeditious disposal of
the matter. If any of the parties fail to appear, the trial
Court is at liberty to proceed in accordance with law.
Having regard to the relationship of the parties, no
order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
BSR/RV
