Karnataka High Court
Sharanamma vs Lingangouda on 6 June, 2024
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NC: 2024:KHC-K:3642-DB
MFA No. 201645 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO. 201645 OF 2017 (MC)
BETWEEN:
SHARANAMMA
W/O LINGANGOUDA MALI PATIL,
D/O SHIVAREDDY JAKAREDDY,
AGE: 37 YEARS, OCC: HOSUEHOLD,
R/O NAGANOOR, TQ: SHAHAPUR,
DISTRICT: YADGIR.
...APPELLANT
(BY SRI. VARUN PATIL, ADVOCATE FOR
SRI. SHIVANAND PATIL, ADVOCATE)
Digitally signed
by VARSHA N AND:
RASALKAR
Location: HIGH
COURT OF
KARNATAKA LINGANGOUDA
S/O SANGANGOUDA MALI PATIL,
AGE: 42 YEARS,
OCC: AGRI, R/O HOONOOR,
TQ: DEODURGA,
DISTRICT: RAICHUR-585 401.
...RESPONDENT
(BY SRI. SANTOSH H. PATIL, ADVOCATE)
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MFA No. 201645 of 2017
THIS MFA IS FILED UNDER SECTION 28 OF HINDU
MARRIAGE ACT, PRAYING TO ALLOW THE APPEAL AND SET
ASIDE THE IMPUGNED ORDER DATED 10.07.2017 OF THE
SENIOR CIVIL JUDGE SHORAPUR IN M.C.NO.08/2015 AND
REMAND THE MATTER BY AFFORDING AN ORRPORTUNITY TO
THE APPELLANTIN TO CONTEST THE MATTER BY CROSS-
EXAMINING THE RESPONDENT AND LEADING HER EVIDENCE
IN THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
This miscellaneous first appeal is filed under Section
28 of the Hindu Marriage Act, challenging the judgment
dated 10.07.2017 passed in M.C.No.8/2015 on the file of
the Senior Civil Judge Shorapur (for short 'trial Court').
2. Brief facts leading to filing of this appeal are as
under;
The respondent filed a claim petition under Section
13 of the Hindu Marriage Act, for decree of divorce
contending that the appellant and respondent are legally
wedded couple and their marriage was solemnized in the
year 1999 at Geddaguli village and ever since the
appellant has not lead marital life with the respondent and
the attempts of the respondent and respectable persons as
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mediators went in vain and so he issued legal notice but
the appellant has replied that she will not lead life with
him in his village and that the respondent needs a
companion to lead marital life and so divorce is the only
option. Hence, filed the petition.
3. The appellant filed objections admitting the
relationship, but denying all other allegations including
desertion and it is contended that the appellant is ready to
join him and discharge her matrimonial duties. Hence,
prayed to dismiss the petition.
4. The trial Court on the basis of the pleadings of
the parties, framed points for consideration. The
respondent in support of his claim petition examined
himself as PW.1 and got marked 2 documents as Exs.P1
and P2. The appellant has not lead any evidence nor
produced any documents. The trial Court after recording
the evidence of PW.1 and on the assessment of oral and
documentary evidence, answered point Nos.1 and 2 in the
affirmative and point No.3 as per final order.
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5. The petition filed by the respondent was
allowed and the marriage solemnized between the
appellant and respondent in the year 1999 was dissolved
by way of divorce. The appellant, aggrieved by the
judgment dated 10.07.2017 passed in the M.C.No.08/2015
by the Senior Civil Judge at Shorapur, has filed this
miscellaneous first appeal.
6. Heard, learned counsel for appellant and
learned counsel for respondent.
7. Learned counsel for the appellant submits that
the trial Court has not provided any opportunity to the
appellant to cross-examine PW.1 and also to lead evidence
and the respondent has failed to prove the allegations
made against the appellant. Further, the trial Court has
not assigned proper reasons for passing the impugned
judgment. Hence, he submits that if a reasonable
opportunity is provided to the appellant, the appellant will
cross-examine PW.1 and lead evidence in support of her
defence. He also submits that as the petition involves the
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status of the parties, if the impugned judgment is setaside
and matter is remanded, no injustice would be caused to
the respondent. Hence, on these grounds he prays to
allow the appeal.
8. Per contra, learned counsel for the respondent
submits that sufficient opportunity was provided to the
appellant to cross-examine PW.1 and also to lead evidence
but the appellant has not availed the opportunity provided
to him. Hence, the impugned judgment passed by the trial
Court is just and proper and does not call for any
interference. Accordingly, he prays to dismiss the appeal.
9. Perused the records and considered the
submissions of learned counsel for the parties. The points
that arises for our consideration are:
(a) Whether the appellant proves that the
trial Court has not provided sufficient
opportunity to the appellant to cross-
examine PW.1 and to lead the evidence?
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(b) Whether the appellant proves that the
impugned judgment and decree is
arbitrary and perverse?
(c) What order?
10. Point Nos.1 and 2 are interlinked with each
other and hence they are taken together for common
discussion in order to avoid repetition of facts.
11. It is not in dispute that, the appellant and
respondent are husband and wife and their marriage was
solemnized in the year 1999 as per the customs prevailing
in their community and they have led marital life. It is the
case of the respondent that, the appellant has deserted
and treated the respondent with the cruelty and the
appellant is not ready to join the company of the
respondent. The respondent having fed up with the
attitude of the appellant has filed the petition under
Section 13 of the Hindu Marriage Act. The respondent has
filed an affidavit in terms of examination-in-chief and got
marked two documents as Exs.P1 and P2. We have
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perused the order, wherein the learned counsel appearing
for the appellant did not cross-examine PW.1 and further
no opportunity was provided to the appellant to lead the
evidence. Merely, on the basis of legal notice, the trial
Court has recorded a finding that the appellant has
voluntarily deserted him without proper cause of action
and allowed the petition. Accordingly, the trial Court has
committed an error in recording a finding that the
appellant has voluntarily deserted the respondent only on
the basis of Ex.P1. Further, the respondent except his oral
testimony has not led any independent witnesses in order
to establish that the appellant has voluntarily deserted.
Therefore,, the impugned judgment passed by the trial
Court is in violation of natural justice and as we have
already recorded that no sufficient opportunity was
provided to the appellant to contest the matter. Hence, on
this ground alone, the impugned judgment is liable to be
set aside. Accordingly, we answer point Nos.1 and 2 in the
affirmative.
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12. Point No.3: In view of the above discussions,
we proceed to pass the following:
ORDER
(a) The appeal is allowed and remanded.
(b) The impugned judgment dated
10.07.2017 passed in M.C.No.8/2015 on
the file of the Senior Civil Judge Shorapur,
is set aside and the petition is restored on
the file Senior Civil Judge, Shorapur.
(c) The trial Court is requested to provide an
opportunity to cross-examine PW.1 and
permit the appellant herein to lead the
evidence in support of her evidence and
thereafter dispose of the petition in
accordance with law.
(d) The parties are directed to appear before
the trial Court on 29.07.2024 without
awaiting any notice.
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(e) Registry is directed to transmit the
records forthwith to the trial Court.
In view of disposal of the appeal, IA.No.2/2017
does not survive for consideration.
Sd/-
JUDGE
Sd/-
JUDGE
MSR
CT;BN
