Karnataka High Court
Smt.Netravati W/O. Raghavendra Pattar vs Shri.Raghavendra S/O. Prakash Pattar on 19 October, 2022
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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MFA No. 100068 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF OCTOBER, 2022
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO. 100068 OF 2020 (MC-)
BETWEEN:
SMT.NETRAVATI W/O. RAGHAVENDRA PATTAR
AGED ABOUT: 30 YEARS, OCC: HOUSEHOLD,
C/O. PRALHAD KAMBAR, SHRI. RENUKA GARAGE,
NEAR A.PM.C., SAUDNATTI,
TQ: SAUNDATTI, DISTRICT. BELAGAVI
...APPELLANT
(BY SRI. ARAVIND D KULKARNI.,ADVOCATE)
AND:
SHRI.RAGHAVENDRA S/O. PRAKASH PATTAR
AGED ABOUT 36 YEARS, OCC: PENSIONER,
R/O H.NO.990, MAHADEV NAGAR, SAMBRA,
TQ: BELGAUM-590001
...RESPONDENT
(BY SRI.RAVIRAJ C. PATIL, SRI.SHRIPRASAD J. JOSHI
AND SMT.VIDYASHREE I.SULDHAR, ADVOCATES)
THIS MFA IS FILED U/S.19(1) OF THE FAMILY COURT ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
10/10/2019 PASSED BY THE FAMILY COURT, BELAGAVI IN
M.C.NO.91/2019 AND REMAND THE MATTER TO THE COURT BELOW
WITH A DIRECTION TO GIVE SUFFICIENT OPPORTUNITY TO THE
APPELLANT HEREIN TO CONTEST THE CASE.
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MFA No. 100068 of 2020
THIS APPEAL COMING ON FOR HEARING, THIS DAY THE
S. SUNIL DUTT YADAV J., MADE THE FOLLOWING:-
JUDGMENT
The appellant who is the respondent before the trial Court has filed the present appeal assailing the judgment of the Family Court at Belagavi in MC No.91/2019 whereby judgment was passed dissolving the marriage solemnized on 27.02.2016 and decree of divorce was granted.
2. Parties are referred to by their ranks before the trial Court for the purpose of convenience.
3. The facts that are made out is that the petitioner and the respondent had entered into a wedlock on 27.02.2016 at Nitya Mangal Karyalay, Balekundri, Belagavi and their marriage was solemnized as per prevailing customs. It is further submitted that the petitioner was stated to be serving in the Army.
4. It is the case of the petitioner that after the marriage, the petitioner and respondent stayed together for about 15 days and the petitioner in the light of his duty in the army had to travel in light of his employment. It is stated that the -3- MFA No. 100068 of 2020 respondent told the mother of the petitioner on 25.03.2016 that her mother's condition was not good and she wanted to go to her parental house and along with ornaments, she left her matrimonial home and did not return back.
5. It is further submitted that the efforts were made to amicably resolve the dispute did not bare any fruits and on 26.12.2017, petitioner had issued notice to the respondent to come and join the petitioner and though the notice was served, respondent neither replied nor has complied with the notice.
6. It is further submitted that there has been continuous desertion from 25.03.2016 as the respondent has not turned up. It is further submitted that the respondent had affairs with other persons which is an act of cruelty. Accordingly, petition came to be filed seeking for grant of decree of divorce. Notice was issued on the petition which is stated to have been refused and respondent was placed exparte. The order sheet of the trial Court would reveal that the petitioner led in evidence and marked documents at Ex.P1 to P3 and arguments were advanced and matter was posted for final -4- MFA No. 100068 of 2020 order. After decree of divorce was granted, the present appeal has been filed by the respondent contending that in the month of February-2019, there was a compromise between petitioner and respondent and it was agreed that both the petitioner and respondent would lead marital life amicably. It is submitted that by playing fraud on the respondent, petitioner filed petition seeking for dissolution of marriage and as respondent was advised not to take notice in view of the settlement and that the matter would be closed. The respondent did not participate in the proceedings before the trial Court. Accordingly, respondent has sought for setting aside of the exparte decree.
7. Heard both sides. The point for consideration is as follows:
1) Whether case is made out for setting aside the judgment and decree and for remanding the matter for fresh consideration after granting opportunity to respondent?-5- MFA No. 100068 of 2020
8. We have perused the judgment of the trial Court. It is to be noticed that the trial Court has narrated the averments as made out in the petition at paragraph nos.1 to 3 and in its discussion has clearly narrated the assertions of the petitioner. While considering the point no.1 at paragraph 8 and after referring to the assertions of the petitioner, the trial Court has observed that evidence of PW1 has remained unchallenged and proceeded to pass a decree for divorce. The only one paragraph of the judgment that indicates that there has been some application of mind is extracted as below:-
" This evidence of PW.1 has remained
unchallenged. From the evidence it means that
there has been refusal and no inclination of the respondent to be with the petitioner. Thereby there is a ground of cruelty proved by the petitioner. The above petition has been filed on 25.02.2016 and respondent as per petition has deserted on 25.03.2016. Thereby the mandatory provision of two years of separation in terms of Section 13(1)(ib) of the Hindu Marriage Act has been duly complied with."
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9. The trial Court then refers to various judgments and proceeded to pass the judgment.
10. It must be noted that no doubt, the notice to respondent has been refused. Even discarding the contention that notice was not accepted by the respondent on the ground that the respondent was advised not to accept the notice in the light of the settlement, that would not take away the burden on the petitioner to prove the averments.
11. In case, the respondent is placed exparte, the Court while proceeding to pass the judgment is burdened with a further duty to examine carefully whether the material on record would constitute sufficient evidence to proceed to dissolve the marriage while upholding the contention of desertion and cruelty. Mere, absence of a written statement will not have effect of acceptance of all assertions of the petitioner. There is a specific assertion and it is averred in the petition that the respondent has left to her mother's place and has deserted from 25.03.2016. It is further submitted that legal notice was also issued. Subsequently, at para 5 of the petition, there is an assertion that notice dated -7- MFA No. 100068 of 2020 26.12.2017 was issued by the petitioner and duly served, but, the respondent has neither replied nor complied with the said notice. This assertion has some significance regarding the aspect of desertion. However, neither the said notice has been produced nor any evidence to substantiate the aforesaid assertion has been produced. Except wedding card and the photographs, no other documents are produced.
12. Accordingly, as regards the aspect of desertion, there is absolutely no independent evidence to prove that the respondent had left the matrimonial home on 25.03.2016 and remained away from the matrimonial home and had withdrawn from the company of the petitioner, from the said date.
13. Insofar as the ground of cruelty, assertion is made that the petitioner had come to know regarding the character of the respondent and that she was having affairs with many persons and had undergone abortion on two occasions. However, as regards the said serious allegation, no evidence which is legally acceptable has been placed on record except -8- MFA No. 100068 of 2020 bald allegation. The trial Court has grossly erred in proceeding to pass a final order without referring to the sufficiency of evidence to substantiate the ground of desertion or cruelty which would led to pass the final order and dissolving the marriage.
14. Further, in the present case, it is also noticed that the respondent has not participated in the proceedings by placing the version of her side, that would also incidentally be an aspect that it is to be taken note of. The point for consideration is answered in the affirmative. Accordingly, the judgment of the Family Court requires to be set aside.
15. Hence, the Judgment of the Family Court in MC No.91/2019 dated 10.10.2019 is set aside.
16. Matter is remanded for fresh consideration. Taking note that the approach of the trial Court was also faulty and erroneous it would also meets the ends of justice by permitting the respondent to participate in the proceedings. -9- MFA No. 100068 of 2020
17. The lapses of the respondent for not exercising due diligence, cost of Rs.1,000/- is to be paid to the High Court legal services Authority.
18. Both parties to be present before the trial Court without any further notice on 12.12.2022. The written statement to be filed on the said date. The trial Court then to proceed as per law. Noting that this is a matter that is being remanded for fresh disposal and also taking note that the matrimonial case was filed in the year 2019, Trial Court to expedite the trial.
19. Further both parties undertake that they will not seek any unnecessary adjournment and co-operate in expeditious disposal of the petition. The said undertaking is taken note of.
20. The TCR to be sent forthwith to the Family Court, Belagavi and the office is directed to ensure that the TCR should reach the trial Court before the next date of hearing.
21. It is needless to state that in the event the petitioner seeks to amend his pleadings, it is always open to file
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MFA No. 100068 of 2020 necessary applications before disposal of the petition in accordance with law. Such observation is made considering that there has been lapse of time during the pendency of the litigation that may have given rise to fresh circumstances that needs to be placed before the Court.
Sd/-
JUDGE Sd/-
JUDGE HMB List No.: 1 Sl No.: 57