Karnataka High Court
Smt. Nagarathna S.S. @ Hongamma vs Sri. Prakasha P on 5 June, 2024
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NC: 2024:KHC:19774-DB
MFA No.2366/2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH 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.2366/2020 (FC)
BETWEEN:
SMT. NAGARATHNA S.S. @ HONGAMMA
W/O PRAKASHA P
AGED ABOUT 33 YEARS
R/AT C/O VENKATESHAPPA
NO.222, 5TH CROSS
HOPE FARM AMBEDKARNAGARA
WHITEFIELD, BANGALORE 560004
Digitally signed ...APPELLANT
by RUPA V (BY SMT. KALPANA P.V. ADV.,)
Location: HIGH
COURT OF AND:
KARNATAKA
SRI. PRAKASHA P
S/O POOJAPPA
AGED ABOUT 51 YEARS
R/AT 97, 2ND CROSS
BEHIND ANJINEYA TEMPLE
KAVERINAGARA, MAHADEVAPURA
BANGALORE-560048.
ALSO AT:
R/AT C/O VENKTESHAPPA
NO.222, 5TH CROSS
HOPE FARM, AMBEDKARNAGARA
WHITEFIELD, BANGALORE 560048.
WORKING AT SLV ENTERPRISES NO.7
MANJUNATHASWAMY NILAYA
1ST MAIN, LAKSHMI SAGAR LAYOUT
BANGALORE 560048.
...RESPONDENT
(BY SMT. SOHANI HOLLA, ADV.,)
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MFA No.2366/2020
THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT,
AGAINST THE JUDGMENT AND DECREE DATED 19.06.2019 PASSED
IN MC NO.452/2018 ON THE FILE OF THE VII ADDITIONAL PRL.
JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION
FILED UNDER SECTION 13(1)(i-a) OF HINDU MARRIAGE ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the judgment and decree of divorce passed
against her, the respondent in M.C.No.452/2018 on the file of
VI Additional Principal Judge, Family Court, Bangalore has
preferred this appeal.
2. The appellant was the respondent and the
respondent in this appeal was the petitioner in
M.C.No.452/2018 before the trial Court. For the purpose of
convenience, the parties are referred to henceforth according to
their ranks before the trial Court.
3. The marriage of the petitioner and the respondent
was solemnized on 09.04.2007 at Sriveera Anjaneya Temple,
Bullapura, Kagadanagara, Bhadravathi as per Hindu rites. Out
of the said marriage, the couple were blessed with daughter
and son, aged 9 years and 1 year respectively, as on the date
of filing of the petition.
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4. The petitioner filed M.C.No.452/2018 against the
respondent under Section 13(1)(ia) of the Hindu Marriage Act,
1955 seeking decree for dissolution of marriage on the grounds
of cruelty. The petitioner alleged that the respondent was
nagging him despite cooperation of him and family members
and she was chatting with some person on mobile phone all the
time. He further alleged that she was having adulterous life
with their neighbour and the male child was born out of such
illicit relationship, as by that time, he had undergone
vasectomy. He claimed that he got DNA test of the child done,
which was negative for his paternity of the child. Thus seeks
decree for divorce.
5. The trial Court holding that the service of notice on
the respondent is sufficient, proceeded against her exparte. The
petitioner was examined as PW.1 and on his behalf Exs.P1 to
P6 were marked. The trial Court on hearing the petitioner by
the impugned judgment and decree held that the allegations of
cruelty and adultery went uncontroverted and were proved by
Exs.P3 to P6 the Truth Lab Report and Pathology Reports
respectively. Challenging the said judgment and decree the
above appeal is filed by the wife.
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6. Smt.Kalpana.P.V., learned counsel for the appellant
wife, reiterating the grounds of appeal submits that as per the
petition itself, both respondent and the petitioner were living in
the same house. The petitioner took bailiff to the house and
obtained signature on the notice representing that the same is
required for the purpose of changing the address in Aadhar
Card and Election Identity Card and maintained the petition
exparte. She further submits that exparte decree of divorce
was outcome of fraud. She further submits that even in case of
exparte decree, the trial Court is required to appreciate the
evidence as allegations of adultery is serious matter and Exs.P3
to P6 were totally unreliable. Therefore, the impugned
judgment and decree is liable to be set aside and the matter be
remanded to the trial Court for an opportunity to hear her.
7. Per contra, Smt.Sohani Holla, learned Counsel for
the petitioner husband submits that the wife herself admits
service of notice. She has not made out any grounds to set
aside the exparte decree. Therefore the same cannot be set
aside. She further submits that specific plea of the husband
regarding cruelty and adultery were proved by Exs.P3 to P6 the
lab report regarding DNA test and Pathology reports about his
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inability to produce sperms. Thus she seeks dismissal of the
appeal.
8. Considering the submissions of both sides and
examining the materials on record, the point that arises for
consideration is "Whether the impugned judgment and decree
of divorce is sustainable in law"?
ANALYSIS
9. There is no dispute between the parties regarding
their marriage on 09.04.2007 and having two children. The
petitioner claims that second child i.e. son was not born to him.
It is material to note that as per the address furnished in the
petition, both the petitioner and the respondent were living in
the same address. The trial Court records shows that the trial
Court issued notice to the respondent through RPAD. However,
the petitioner did not pay process fee for issuing notice through
RPAD. The endorsement in the order sheet of the trial Court on
03.04.2018 shows that the notice was served on the
respondent personally. The trial Court records contained
process issued through Court and bailiff and endorsement on
the same shows that he has served the notice on the person
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shown by the petitioner himself. Why and how, despite the
Court issuing notice by RPAD, notice was issued by the office of
the trial Court through bailiff is not forthcoming. There is no
explanation on the part of the petitioner over the same. That
probabilizes the contention of the respondent that there was
something fishy on serving notice on her.
10. The decree of divorce being judgment in rem, even
if the respondent does not contest the matter, the petitioner
has to prove the same by acceptable evidence. Admittedly, the
respondent begot two children during subsistence of the
marriage. Under the circumstances, Section 112 of the Indian
Evidence Act, 1872 ('the Evidence Act' for short) confers
conclusive proof of legitimacy to the son of the couple. In such
cases, Section 4 of the Evidence Act, bars the Court from
accepting oral evidence to disprove the paternity of the child,
unless the petitioner/husband satisfies that he had no access to
the respondent wife in conjugal relationship. It was for him to
show that he had no access to the respondent in their conjugal
relationship.
11. The trial Court relied on Ex.P3, DNA test report, but
there was nothing to show who collected sample from the child
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and where it was collected. There was nothing to show that
sample was that of the child only. Similarly, though the
petitioner contended that he underwent vasectomy surgery,
therefore he was incapable to produce the sperms, no
documents in proof of such vasectomy surgery was produced.
Therefore Exs.P3 to P6 were not proved in accordance with law.
The authors of those documents were not examined. Therefore
the trial Court committed serious error in holding that by those
documents the child being illegitimate one was proved. The
couple were married for about 12 years. By that time, the
petition was filed. There were having two children. The trial
Court ought to have applied its mind in discrepancy of service
of notice contrary to its order. Under the circumstances, the
respondent wife cannot be thrown out of matrimonial life
without opportunity of hearing, more particularly, when serious
stigmatic allegations of adultery were made. Therefore the
impugned judgment and decree is liable to be set aside and the
matter needs to be remanded to the trial Court for fresh
consideration. Hence, the following:
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ORDER
The appeal is allowed. The impugned judgment and
decree of divorce dated 19.06.2019 in M.C.No.452/2018 passed
by VI Additional Principal Judge, Family Court, Bengaluru is
hereby set aside and the matter is remanded to the trial Court
for fresh consideration.
To avoid further delay, the parties are hereby directed to
appear before the trial Court on 09.07.2024 without any further
notice.
On such appearance, the trial Court shall give opportunity
to the appellant-wife to file her statement of objections.
Thereafter, the trial Court shall give reasonable opportunity to
both the parties and dispose of the matter as expeditiously as
possible at any rate within six months from the date of
appearance of the parties.
If any of the parties fail to appear, the trial Court shall
proceed in accordance with law.
Transmit the records to the trial Court.
The Court places on record its appreciation for the able
assistance rendered by Smt. Kalpana P.V and Smt. Sohani
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Holla, learned Standing Counsel for the High Court Legal
Services Committee.
Sd/-
JUDGE
Sd/-
JUDGE
BSR/KSR
