Karnataka High Court
Mr P S Uday Bhat vs Nil on 30 April, 2015
Equivalent citations: AIR 2015 (NOC) 1036 (KAR.), 2015 (3) AKR 77
Bench: N.K.Patil, Rathnakala
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF APRIL 2015
PRESENT
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE RATHNAKALA
MISC. FIRST APPEAL NO.3168 OF 2015 (FC)
BETWEEN:
1. Mr.P.S.Uday Bhat
S/o P.Shivananda Bhat
Aged about 40 years
"Srikrupa", No.2409
8th Main Road
Banashankari 2nd Stage
BANGALORE-560070.
2. Mrs.Radha Bhat
W/o P.S.Uday Bhat
Aged about 35 years
No.48/1, Near Nandini Bakery
G.M.Palya Main Road
New Thippasandra Post
Bangalore-560 075. ...APPELLANTS
(By Sri.H.V.Nagaraja Rao, Adv.)
2
AND:
NIL ...RESPONDENT
THIS MISC. FIRST APPEAL IS FILED UNDER SECTION
19(1) OF THE FAMILY COURTS ACT, AGAINST THE
JUDGMENT & DECREE DATED:13.4.2015 PASSED IN
M.C.NO.3851/2014 ON THE FILE OF THE 4TH ADDITIONAL
PRINCIPAL JUDGE, FAMILY COURT, BANGALORE,
DISMISSING THE PETITION FILED U/S. 13B OF THE HINDU
MARRIAGE ACT, AS NOT MAINTAINABLE.
THIS MFA HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 28/04/2015 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
RATHNAKALA J., DELIVERED THE FOLLOWING:-
JUDGMENT
The appellants have preferred this appeal aggrieved by the order passed in M.C.No.3851/2014 dated 13.4.2015 by the IV Additional Principal Judge, Family Court, Bangalore, in rejecting the petition filed by the appellants herein under Section 13B of the Hindu Marriage Act, 1955 ('the Act' for brevity).
2. Facts in brief:
The appellants married each other according to the Hindu rites on 1.9.2002 and are blessed with a female child, who is now aged 10 years. Due to differences interse, though they were living 3 under the same roof, but without co-habitation for over three years and the wife/second appellant, off late, moved out of the matrimonial home to her parents' house w.e.f. 23.8.2014. The child is in the custody of the wife. By mutual consent, they filed a joint petition on 8.9.2014 under Section 13B of the Act, for divorce. The case was registered with the office objection that the petition is filed within one year of separation. On the application moved by the appellants, they were permitted to engage the service of the Counsel. It was ordered, "subject to compliance of office objections, call on for conciliation by 10.3.2015." Accordingly, on 10.3.2015 case was called. The petitioners/appellants herein appeared and they were directed to appear before the Bangalore Mediation Centre on 11.3.2015. The order sheet does not indicate the report of the Mediation Centre. However, on 12.3.2015, on the application moved by the petitioners, the matter was heard on office objection and on 13.4.2015, for want of specific pleading that the petitioners were residing separately for a 4 period of one year prior to presentation of the petition, the petition came to be dismissed as not maintainable.
3. Sri.H.V.Nagaraja Rao, learned Counsel appearing for the appellants submits that, the Family Court without affording an opportunity to the appellants to adduce their evidence and without ascertaining the facts has dismissed the petition at a stroke only on the basis of the office note. It was the case of the appellants that though they were residing under the same roof for last three years, they had not co-habited with each other and have not led marital life. The impugned order is passed without giving opportunity to them and that has resulted in great inconvenience and hardship to the appellants.
4. Having heard the learned Counsel and on perusal of the impugned order, we expressed our concern about the future financial security of the minor child born out of the said marriage. In response to the same, they filed a joint memo dated 28.4.2015 5 along with documentary proof duly signed by both of them and also by their learned Counsel, which reads thus:
"JOINT MEMO We, P.S.Uday Bhat and Mrs.Radha Bhat, the Appellants in the above appeal do hereby submit that both of us have separately opened Bank Account with I.C.I.C.I. Bank named "Smart Kid Wealth Creation Plan" in the name of our minor child which will not invite any financial risk since the amount invested by us will be deposited by the Bank only in Govt. of India Securities as stated by the Bank. The scheme involves deposit of Rs.1,00,000/- each per annum for 5 years.
Wherefore, we Appellants pray that this Hon'ble Court be pleased to allow the appeal in the interest of justice and equity."
5. We are convinced that the welfare of the minor child is secured to some extent and is not wholly jeopardized by the separation of her parents. Coming back to the matter on hand, we are constrained to observe that the learned Family Court Judge has not fathomed from the pleadings, the circumstances under which the appellants were prompted to file the petition for 6 divorce. At this juncture, it is relevant to extract the provisions of the Section 13B of the Act, which reads thus:
"13B. Divorce by mutual consent.-
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree".
6. From the above, it is clear that sub-section (1) of Section 13B of the Act contemplates the circumstances under which estranged spouses can get their marriage dissolved by mutual consent. The procedure is contemplated in sub-section (2) of 7 Section 13B of the Act. The Family Court having registered the case with the office objection that the petition is filed within one year of separation, there was no meaning in ordering to the effect "subject to compliance of office objection, call on for conciliation by 10.3.2015." There was nothing on the part of the appellants to comply any office objection; it was only by way of adducing evidence, they could have convinced the Court that they are living separately though residing under the same roof in one building. The procedure to be followed by the Family Court is enumerated in Sections 10 and 14 to 16 of the Family Courts Act, 1984, which reads thus:
"10. Procedure generally.- (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the 8 proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other."
"14. Application of Indian Evidence Act, 1872.
- A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872).
15. Record of oral evidence. - In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record.
16. Evidence of formal character on affidavit. -
(1) The evidence of any person where such evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court.
(2) The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such person as to the facts contained in his affidavit".9
7. The learned Family Court Judge ought to have given opportunity to the petitioners to explain the circumstances under which the petition was filed by allowing them to adduce evidence and then should have disposed of the petition in accordance with law.
8. Without having the benefit of the evidentiary material, the learned Family Court Judge has passed a non-speaking order and same is liable to be set aside.
Accordingly, the appeal is allowed.
The order dated 13.4.2015 passed in M.C.No.3851/2014 by the IV Additional Principal Judge, Family Court, Bangalore, is hereby set aside.
The matter is remanded to the IV Additional Principal Judge, Family Court, Bangalore, with a direction to dispose of the petition filed by the parties under Section 13B of the Act in accordance with law, in the light of the observations made supra. 10
The parties are directed to appear before the IV Additional Principal Judge, Family Court, Bangalore, on 4.5.2015 at 11.00 a.m. Registry is directed to communicate this order to the concerned Court forthwith.
Sd/-
JUDGE Sd/-
JUDGE KNM/-