Karnataka High Court
Smt Rohini vs D G Rajanna on 14 March, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14th DAY OF MARCH, 2017
PRESENT
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE B.A.PATIL
M.F.A.NO. 8493/2010 (MC)
BETWEEN:
Smt. Rohini,
Aged about 27 years,
W/o D.G.Rajanna
No.63, G.Block,
Jockey Quarters,
Lalith Mahal Road,
Mysore.
......... Appellant
(By Rathna N. Shivayogimath, Advocate)
AND:
D.G.Rajanna,
Aged about 37 years,
S/o Gopalayya,
PSI, DCIB, Gulbarga
Residing at CIB Colony,
Gulbarga.
......... Respondent
(By Ameet Kumar Deshpande, Advocate)
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This appeal is filed under section 28 of the Hindu
Marriage Act, against the judgment and decree dated
30.06.2010 passed in M.C.No.3/2007 on the file of the Civil
Judge (Sr.Dn.( and JMFC, Chincholi, allowing the petition
filed U/s 13(1) (i-a) of Hindu Marriage Act, for decree of
divorce.
This appeal coming on for Orders this day, Aravind
Kumar, J., Delivered the following:
JUDGMENT
This appeal is directed against the judgment and decree passed by Civil Judge (Sr.Dn.) & JMFC, Chincholi dated 30-06-2010 in MC No.3/2007, whereunder petition filed by the respondent herein under Section 13(1)(i-a) of Hindu Marriage Act, 1955 seeking decree of divorce by dissolution of the marriage with the petitioner/wife solemnized on 09-03-2000 came to be allowed.
2. Appeal has been admitted on 21-09-2015 and the records of the trial Court secured would indicate that several attempts have been made to resolve the dispute between the parties and on account 3 of hard stand taken by both the parties, dispute could not be resolved. Since, records would disclose that appeal being of the year 2010 and records of the trial Court having been secured and there being no possibility of settlement in the near future, we have called upon the learned counsel to address the arguments on merits. Accordingly they have addressed the arguments.
3. We have heard the learned counsels and perused the records. The marriage between respondent and petitioner came to be solemnized as per the Hindu rites and Customs on 09-03-2000 at Mysore and out of said wedlock a son and daughter were born.
4. Respondent/husband herein filed a petition under Section 13(1) (i-a) of the Hindu Marriage Act seeking for divorce and sought for dissolution of the marriage solemnized on 09-03-2000. Initially petition 4 came to be allowed on 19-04-2008 and it was be set aside in Civil Misc.No.8/2008 on 26-11-2009, which petition was filed under Order 9 Rule 13 CPC. It was contended by the husband that from the beginning of the year 2003, the behavior of the respondent towards him was apathetic and she started suspecting him for having illicit relationship with Smt. Mangala W.P.C. whenever he used to come to the house late due to his duty and respondent always picked-up quarrel with him and she was not discharging her matrimonial obligations. It was alleged that she became reckless, callous, arrogant towards him and also complained to higher officer in the police department with an intention to degrade his position in the department, since he was working as a police officer. It was also alleged that she never took care of pick the children and the home and had abruptly deserted him and proceeded to her parents house by taking jewellery, passbook, ATM card etc., and lodged a false complaint under Section 498(A), 5 323, 324, 504, 506, 109 R/w Section 34 of IPC, in Cr.No.15/2007 as such unable to live with her, he sought for divorce and dissolution of marriage.
5. Respondent filed her statement of objections admitting her relationship and denying the averments made in the petition for divorce expect to the extent admitted thereunder. Petitioner got himself examined as PW1 and in all he produced 14 documents and got them marked as Ex.P1 to Ex.P14. Respondent did either entered the witness box or cross examine PW1. Hence, trial Court proceeded to adjudicate the claim and by the judgment and decree in question allowed the petition on 30-06-2010. Same is under challenging in the present appeal by respondent-wife.
6. It is contention of the Smt. Rathna N Shivayogimath, learned counsel appearing for the appellant / wife that judgment of the trial Court is liable 6 to set aside for not affording an opportunity to the appellant to either cross examine PW2 or to tender her evidence and she was under a bonafide impression that petition C.P.No.43/2010 filed before this Court for transfer of present M.C. Petition No.3/2007 from the Court of Chincholi to the Family Court at Mysore as she was residing at Mysore and as such she was under the bonafide impression, the matter would be transferred and hence did not appear before the jurisdictional Court at Chincholi on the hearing date. The trial Court proceeded to pass an ex-parte judgment and decree and as such she prays for opportunity being extended to her to appear and contest the case. In this ground she seeks for judgment being set aside and matter being remanded to trial court.
7. Per contra, Sri. Ameet Kumar Deshpande, learned counsel appearing for the respondent by supporting the judgment and decree passed by the trial 7 Court would submit that even an earlier occasion, though respondent/wife was served had remained absent and even thereafter she was absent before the jurisdictional Court and as such trial Court had found that no useful purpose would be served by postponing the proceedings as such proceeded to dispose of the matter on merits. It was also noticed by the trial Court that she had filed a false complaint of dowry harassment and as such the investigating authority had filed B-Report, based on which it was accepted by the jurisdictional Court and criminal proceedings were dropped and after noticing that she had also consented for B-Report being accepted, the trial Court in instant case had arrived at a conclusion that filing of false case amounts to mental harassment. Hence it has granted a divorce in favour of the husband and submits that there is no error committed by the trial Court. However he would hasten to add that in the event of this Court for any reason setting aside the judgment of trial court, the 8 respondent/husband would be ready and willing to take the care of the maintenance of the children by paying maintenance @ Rs.6,000/- per month during the pendency of the proceedings before the trial Court which submission is made on instructions from the respondent/husband who is present before Court.
8. Having heard the learned counsel appearing for the parties, we are the considered view that the following points would arise for our consideration:
1) Whether judgment and decree passed in MC No.37/2007 is required to be set aside for any reason whatsoever?
2) What order?
9. There is no dispute with regard to relationship between the parties. As could be seen from the records of the trial Court, an ex-parte decree came to be passed on 19-04-2008 in the very same 9 M.C.Petition i.e. M.C.No.3/2007, and it was set aside in Civil Misc.No.8/2008 by order dated 26-11-2009. Thereafter petition came to be restored and matter was being adjourned from time to time. Statement of objections came to be filed on 18.01.2010. Petitioner/husband came to be examined on 03.02.2010 by way of further examination-in-chief and Ex.P2 to Ex.P14 were got marked. Matter was being adjourned from time to time for cross examination of PW1 and infact petitioner/husband also filed an application for further evidence which came to be allowed by trial Court. However by that time petitioner's cross examination had been closed, since he was fully cross examined on 23-02-2010. When the matter was at the stage of recording of the evidence of respondent/ wife, she filed a Civil Petition before this Court in C.P.No.43/2010 for transfer of M.C.No.3/2007 pending on the file of Civil Judge (Sr.Dn.) & JMFC, Chincholi to Family Court Mysore and obtained stay of further 10 proceedings by order dated 25-03-2010 passed in C.P.No.43/2010. Subsequently said C.P. was listed on 25-07-2010 and as per order sheet of C.P.No.43/2010 which came to be produced before the trial Court along with a memo on 03-06-2010 discloses that none had appeared on behalf of the petitioner/wife on the said date. Order sheet of C.P.No.43/2010 enclosed to the memo filed by the husband before the trial Court on 03.06.2010, indicated that interim order of stay which was in operation for a period of Four weeks had not been extended. Hence, by placing the said memo on record and noting the absence of respondent-wife trial Court heard the arguments of the learned counsel appearing for the petitioner / husband and to extend one more opportunity to the counsel appearing for the respondent matter was adjourned to 14.06.2010 by trial Court. However, on the said date i.e. 14-06-2010 counsel representing the respondent wife pleaded his inability to address arguments for want of instructions. 11 Hence the arguments of the respondent is taken as nil and matter was listed for pronouncement of judgment on 30-06-2010 and on the said date, judgment came to be pronounced by allowing the petition.
10. As could be seen from the records of the trial Court, memo filed by the petitioner husband in M.C.No.3/2007 on 03-06-2010 enclosing the order sheet of C.P.No.43/2010 which discloses that stay of further proceedings granted on 25-03-2010 had not been extended on 25-07-2010, since none had appeared before this Court in C.P.No.43/2010. Thus, contention of appellant before this Court assigning the reasons for her absence on the next date of hearing before the trial Court i.e. on 03-06-2010 or on 14-03-2010 being under the bonafide impression on the ground that she was under a bonafide impression that stay of proceedings granted in C.P. No.43/2010 would be extended or the said M.C.No.3/2007 would be transferred to the Mysore 12 Court seems to be reasonable ground for her non appearance before trial Court at Chincholi on date of hearing and said reason argued by her cannot be construed that respondent wife with an intention on drag on the proceeding or protract the proceedings had failed to appear before the trial Court. A serious allegation of adultery has been alleged against her husband and it was for her to establish by cogent evidence to prove the said allegation. Since ground she had urged in her statement of objection is she was unable to live with him and had parted his company to stay away from him contending as he was having illicit relationship is a reasonable cause for withdrawing her company from her husband. However, burden was cast on the respondent wife to establish the allegation made by her in the defense set up before the trial Court in M.C.No.3/2007. There being lack opportunity to her to substantiate her claim and her absence on 03-06-2010 and 14-06-2010 before trial Court has stated by her in 13 the present appeal being susceptable to acceptance, we are of the considered view that by extending one more opportunity to the appellant to contest the petition on merits would not only meet the ends of justice, but would also ensure that there would be a level playing field to both the parties. It is also stated that earlier petitions filed by the appellant wife was at Mysore Court and the C.P.No.43/2010 filed by her seeking for transfer of M.C.No.3/2007 from the Civil Judge (Sr.Dn.) & JMFC, Chincholi to the Family Court at Msyore had been dismissed on 02-07-2010 on account of the original MC petition 3/2007 having been disposed of on 30-06-2010 as a ground to dismiss the petition as having been infructuous. Hence, we are also of the view that by transferring M.C.No.3/2007 to the file of the Family Court in exercise powers vested under Section 24 of the C.P.C it would met the ends of justice. Hence we proceed to pass the following..
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ORDER
i) Miscellaneous First Appeal is
hereby allowed.
ii) Judgment and decree passed
in M.C.No.3/2007 on 30-06-2010 by Civil Judge, (Sr.Dn.) & JMFC, Chincholi is hereby set aside M.C.No.3/2007 is restored to file and it is hereby ordered to be transferred and listed before the Family Court Mysore.
iii) Both parties shall appear before the Family Court Mysore on 05-06- 2017 without waiting for any further notice from the Family Court.
iv) Respondent/ husband shall to pay a sum of Rs.6,000/- as maintenance to his children namely Master Surya and Ms.Megha during the pendency of the present proceedings, which shall be including the maintenance awarded in Cr.Misc.No.272/2008 or in substitution to the said order.
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v) Registry is directed to transmit the records to the Family Court, Mysore forthwith.
vi) It is also made clear that the Family Court, Mysore shall not insist for the presence of the respondent/husband on all the dates of hearing expect when his presence is must or necessary.
vii) Both parties shall cooperate
with the trial Court for expeditious
disposal.
Sd/-
JUDGE
Sd/-
JUDGE
SMP