Karnataka High Court
Smt.Shailaja W/O Santosh Manvikar vs Santosh on 29 May, 2024
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MFA No.200887 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K.
MISCL. FIRST APPEAL NO.200887 OF 2018 (MC-DIV)
BETWEEN:
SMT.SHAILAJA
W/O SANTOSH MANVIKAR,
AGE:37 YEARS,
OCC: PRIVATE SERVICE,
R/O: NOW RESIDING AT PLOT NO.5,
BASAVANNA LAYOUT,
NEW RAGHAVENDRA COLONY,
KALABURAGI - 585 102.
...APPELLANT
Digitally signed by (BY SMT. HEMA L.KULAKARNI, ADVOCATE)
BASALINGAPPA
SHIVARAJ
DHUTTARGAON AND:
Location: HIGH COURT
OF KARNATAKA
SANTOSH
S/O VEERANNA MANVIKAR,
AGE:39 YEARS,
OCC: GOVT., SERVANT,
R/O: H.NO.15-1498,
BEHIND POLICE QUARTERS,
SHAHABAD, TQ: CHITTAPUR,
DIST : GULBARGA - 585 202.
...RESPONDENT
(RESPONDENT SERVED)
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MFA No.200887 of 2018
THIS MFA IS FILED UNDER SECTION 28 OF HINDU
MARRIAGE ACT, PRAYING TO ALLOW THE APPEAL AND
THEREBY SET ASIDE THE JUDGMENT AND DECREE DATED
31.01.2018 IN MATRIMONIAL CASE NO.21/2015 PASSED BY
THE HON'BLE SENIOR CIVIL JUDGE, CHITTAPUR, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS MFA COMING ON FOR HEARING THIS DAY, ASHOK
S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant challenging the
order dated 31.01.2018 in M.C.No.21/2015 passed by the
Senior Civil Judge, Chittapur (for short, 'the trial Court').
2. For the sake of convenience the parties are
referred to as per their ranking before the trial court.
3. The appellant is the respondent. The
respondent is the petitioner.
4. Brief facts leading to rise filing of this appeal
are as under:
The petitioner and the respondent are the husband
and wife and their marriage was solemnized on
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27.02.2011 at Gulbarga in front of house of the petitioner
as per customs prevailed in their community. After their
marriage, they led happy married life for some time.
Thereafter, the respondent started misbehaving with the
petitioner as she was not ready to adjust with the
petitioner and his family members and therefore the
respondent frequently leaving the company of the
petitioner and was staying with her parents' house at
Gulbarga. As such, the respondent disturbed the marital
life of the petitioner. It is contended that the respondent
again started misbehaving with the petitioner and was
insisting the petitioner to separate from the joint family
and due to non co-operation of the respondent, quarrel
started in the family and on account of such quarrel, the
petitioner was suffering mentally and mental worries
caused inconvenience to the petitioner in discharging his
official duty.
It is contended further that the petitioner to co-
operate the respondent, has left the old house at
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Shahabad and started leaving in their house and during
this period, the respondent became pregnant and gave
birth to a male child. It is contended that the petitioner is
working as a Village Accountant and used to leave the
house everyday in the morning and return in the night.
The respondent has lodged a criminal case against the
petitioner. The respondent has caused mental cruelty and
deserted the petitioner. Hence, prayed to allow the
petition.
5. The respondent filed the objections except
admitting the marriage and denied the cruelty and sought
to dismiss the petition.
6. The petitioner in order to substantiate his case
examined himself as P.W.1 and examined his mother as
P.W.2 and got marked four documents as Exs.P.1 to 4.
The respondent stepped into witness box and examined
herself as R.W.1, but was partly cross-examined and she
did not turn up for further cross-examination.
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7. The trial Court on the basis of oral and
documentary evidence, allowed the petition and ordered
that the marriage of the petitioner with the respondent
held at Gulbarga on 27.02.2011 is dissolved by a decree of
divorce.
8. The respondent aggrieved by the order dated
31.01.2018, filed this appeal. In spite of issuance of
notice, the petitioner i.e., respondent herein remained
absent.
9. Heard the learned counsel for the respondent.
10. The learned counsel for the respondent submits
that the trial Court has not properly appreciated the
material evidence placed on record. Further, she submits
that R.W.1 could not tender herself for further cross-
examination and that if reasonable opportunity is granted
to R.W.1, she will tender herself for cross-examination.
Hence, she prays to allow the petition and remit the
matter to the trial Court with a direction to provide an
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opportunity to R.W.1 to tender herself for further cross-
examination.
11. Perused the records and considered the
submissions of the learned counsel for the respondent.
12. In order to prove the case, the petitioner has
led oral evidence and produced documents. On the other
hand, the respondent was examined herself as R.W.1 and
she was partly cross-examined and for further cross-
examination, the matter was deferred due to personal
inconvenience of R.W.1. Subsequently, R.W.1 could not
tender herself for further cross-examination. Having
regard to the submissions and looking the materials placed
on record, there are sufficient grounds made out by the
respondent for not tendering herself for further cross-
examination. As the petition involves the status of the
parties, the impugned judgment is in violation of principles
of natural justice. If an opportunity is provided to the
respondent, no injustice could cause to the petitioner.
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13. In view of the above discussions, we proceed to
pass the following:
ORDER
i. The appeal is allowed.
ii. The impugned order dated 31.01.2018
passed in M.C.No.21/2015 by the Senior
Civil Judge, Chittapur is set aside.
M.C.No.21/2015 on the file of Senior Civil
Judge, Chittapur is restored.
iii. The trial Court is requested to dispose of
the matter afresh in accordance with law
after providing opportunity to R.W.1 to
tender herself for further cross-
examination.
iv. It is made clear that, if R.W.1 does not
tender herself for further cross-
examination, the respondent is not
entitled to get the benefit of this order.
v. The trial Court is directed to issue notice
to both the parties fixing the date of
appearance of the parties.
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vi. The registry is directed to transmit the
records forthwith to the trial Court.
Sd/-
JUDGE
Sd/-
JUDGE
BL
