Karnataka High Court
Kavya @ Kusuma Bharath Reddy vs Bharath Reddy on 16 January, 2020
Bench: B.V.Nagarathna, Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B. V. NAGARATHNA
AND
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
M.F.A. No.8517/2019 (FC) C/W M.F.A. No. 387/2020 (FC)
M.F.A. No.8517/2019
BETWEEN :
1. SMT.KAVYA @ KUSUMA
BHARATH REDDY
AGED ABOUT 31 YEARS
D/O.BALAKRISHNA REDDY
RESIDING AT NO.158
1ST MAIN, SHAKTI GARDEN
KALYANA NAGARA
NAGARAVBHAVI MAIN ROAD
BANGALORE - 560 072.
2. BABY ABHIGNA BHARATH REDDY
(4 YEARS 6 MONTHS OLD)
REPRESENTED BY NATURAL
GUARDIAN, 1ST PETITIONER. ... APPELLANTS
(BY SRI.AMIT DESHPANDE, ADVOCATE)
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AND :
SRI.BHARATH REDDY
AGED ABOUT 35 YEARS
S/O.C.GOVINDA REDDY
NO.28, MAA ILLU, 8TH CROSS
PURANDARA DASA ROAD
BENDREGERE
BSK 2ND STAGE
BANGALORE - 560 070
AND ALSO
NO.1476, 5TH MAIN
GANAPATHIPURA
BANGALORE - 560 062. ... RESPONDENT
(BY SRI.VISHNU HEGDE, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 19(1) OF
THE FAMILY COURT ACT AGAINST THE JUDGMENT
AND DECREE DATED 04.09.2019 PASSED IN
M.C. NO.1927/2015 ON THE FILE OF THE IV ADDITIONAL
PRL. JUDGE, FAMILY COURT, BENGALURU, DISMISSING
THE PETITION FILED UNDER SECTION 9 OF THE HINDU
MARRIAGE ACT.
M.F.A. No.387/2020
BETWEEN :
1. SMT.KAVYA @ KUSUMA
BHARATH REDDY
AGED ABOUT 31 YEARS
D/O.BALAKRISHNA REDDY
RESIDING AT NO.158
1ST MAIN, SHAKTI GARDEN
KALYANA NAGARA
3
NAGARAVBHAVI MAIN ROAD
BANGALORE - 560 072. ... APPELLANT
(BY SRI.AMIT DESHPANDE, ADVOCATE)
AND :
SRI.BHARATH REDDY
AGED ABOUT 35 YEARS
S/O.C.GOVINDA REDDY
NO.28, MAA ILLU, 8TH CROSS
PURANDARA DASA ROAD
BENDREGERE, BSK 2ND STAGE
BANGALORE - 560 070.
AND ALSO
NO.1476, 5TH MAIN
GANAPATHIPURA
BANGALORE - 560 062. ... RESPONDENT
(BY SRI. VISHNU HEGDE, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 19(1) OF
THE FAMILY COURT ACT AGAINST THE JUDGMENT
AND DECREE DATED 04.09.2019 PASSED IN
MC NO. 2059/2015 ON THE FILE OF THE IV ADDITIONAL
PRL. JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE
PETITION FILED UNDER SECTION 13(1)(ia) OF THE HINDU
MARRIAGE ACT.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, NAGARATHNA. J, DELIVERED THE FOLLOWING;
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JUDGMENT
These appeals arise from the common judgment dated 04.09.2019 passed by the IV Additional Principal Judge, Family Court, Bengaluru, in M.C. No.1927/2015 C/w. M.C. No. 2059/2015. Hence, these appeals have been connected together.
2. Though these appeals are listed for admission, with the consent of the learned counsel on both the sides, they are heard finally.
3. These appeals are preferred by the appellant/wife against the respondent/husband being aggrieved by the common judgment and decrees passed in M.C. No.1927/2015 C/w. M.C. No. 2059/2015 by the family Court. M.C. No. 1927/2015 was a petition filed under Section 9 of the Hindu Marriage Act. 1955 (hereinafter referred to as `the Act' for the sake of brevity) while M.C. No. 2059/2015 was filed by the respondent/husband under Section 13(1)(ia) of the said Act seeking dissolution of marriage by a decree of divorce. As noted above M.C. No. 5 1927/2015 filed by the appellant/wife was dismissed while M.C. No. 2059/2015 filed by the respondent/husband was allowed. Hence, appellant/wife has preferred this appeal.
4. We have heard the learned counsel for the appellant/wife and learned counsel for respondent/husband and perused the material on record.
5. Appellant's counsel contended that the family Court has dismissed the petition filed by the appellant under Section 9 of the Act and allowed the petition filed by the respondent/husband under Section 13(1)(ia) of the Act. In both these proceedings there has been non- participation of the appellant inasmuch as she did not cross-examine the respondent who tendered his evidence as P.W.1 and neither did she let in any evidence in support of her case nor against the respondent who had sought for a decree of divorce before the family Court. He submitted that on account of no evidence being let in by the appellant/wife and non cross-examination of the respondent/husband who let in his evidence as P.W.1, the 6 proceedings seeking for divorce by the respondent/husband has been virtually uncontested though statement of objections was filed by the appellant to the said proceedings. He contended that similarly no evidence was let in by the appellant to substantiate her case for seeking the relief of restitution of conjugal rights under Section 9 of the Act. He submitted that there were valid and serious reasons as to why the appellant could not attend the Court proceedings before the family Court on certain dates. As a result, the family Court has observed that there was nil cross-examination of P.W.1 and nil evidence let in by the appellant. Considering the evidence of respondent only the proceedings have been disposed rejecting appellant's petition under Section 9 of the Act and by allowing respondent's petition under Section 13(1)(ia) of the Act and thereby granting a decree of dissolution of marriage by divorce. He submitted that the relief granted to the respondent as against the appellant is serious and affects the appellant vitally and such relief has been granted in the absence of any evidence being let in 7 by the appellant for genuine and bonafide reasons. Therefore, the impugned judgment and decrees may be set aside and the matter may be remanded to the family Court so as to grant an opportunity to the appellant herein to let in her evidence and contest the matter and the family Court could thereafter dispose of the proceedings in accordance with law.
6. Per contra, learned counsel for respondent has vehemently supported the impugned judgment and decrees and contended that there is no merit in this appeal as appellant's intention is simply to drag on the proceedings and procrastinate the same. Despite granting several opportunities by the family Court, the appellant did not make use of the said opportunities. She neither cross- examined the respondent who tendered evidence as P.W.1 nor did she let in any evidence in support of her case filed under Section 9 of the Act nor any contra evidence against respondent herein was let in the proceedings seeking dissolution of marriage by a decree of divorce. In the 8 circumstances the family Court rightly proceeded to decide the matter on the basis of evidence available on record. The appellant is solely to blame for, if, she is aggrieved by the common judgment and decrees of the family Court. Hence, the appeals may be dismissed.
7. Having heard learned counsel for the respective parties the following points would arise for our consideration.
i. Whether the common judgment and decrees of the family Court passed under Section 9 and 13(1)(ia) of the Act rejecting the petition for restitution of conjugal rights and granting dissolution of marriage by a decree of divorce in favour of the respondent calls for any interference?
ii. What order?
8. Detailed narration of facts and contentions above would not call for reiteration except highlighting the fact 9 that the appellant herein despite filing her statement of objections did not contest the petition filed by the respondent under Section 13(1)(ia) of the Act; neither did she cross-examine the respondent who tendered his evidence as P.W.1 nor let in her independent evidence. Further, though the appellant sought for restitution of conjugal rights under Section 9 of the Act, she did not let in any evidence in support of her case. As a result, there has been non-participation of the appellant in the proceedings before the family Court. In the circumstances the family Court proceeded to decide the matter on the basis of available evidence. We find that the grant of decree of divorce against the appellant herein is a serious matter concerning the personal life of the appellant. On the other hand, appellant had sought for restitution of conjugal rights and had objected to the grant of decree of divorce by filing her statement of objections. But, for the reasons best known to the appellant, she did not make use of the opportunity granted by the family Court to let in her evidence. It may be that the family Court proceeded to 10 dispose of the proceedings in the absence of any contest from the appellant herein. But the fact remains that the decree of divorce granted by the family Court is an uncontested one particularly when the fact that appellant herein had sought for restitution of conjugal rights. No doubt the respondent is at the receiving end and has contended that there is miscarriage of justice but the fact remains that appellant did not participate in the proceedings and her case has not been put forth in the proceedings. The family Court did not have the benefit of appellant's version of her case in the proceedings. The impugned judgment and decrees are virtually an ex-parte one and an uncontested one on account of non- participation of the appellant in the said proceedings. In the circumstances we deem it proper and in the interest of justice to give another opportunity to the appellant to cross-examine P.W.1 and also let in her evidence in the matter.
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9. Hence, the appeal is allowed and the impugned judgment and decrees are set aside. The petitions are restored on the file of the family Court. On conclusion of trial, the family Court shall dispose the proceedings in accordance with law.
10. Since the matters are of the year 2015, both the parties are directed to cooperate with the family Court for expeditious disposal of the same.
11. Since we have allowed the appeals and set aside the common judgment and decrees of the family Court in order to give an opportunity to the appellant in the said proceedings, we find that cost of Rs.10,000/- has to be paid by the appellant to the respondent, apart from the cost imposed by the family Court which have not been paid and total cost shall be payable by the appellant to the respondent on 24.02.2020 or any other date to be stipulated by the family Court. It is needless to clarify that it is only on payment of said cost by the appellant to the 12 respondent that further proceedings could take place before the concerned family Court.
In view of disposal of the appeals, I.A. No. 1/2019 in both the appeals would not survive for consideration and they stand disposed.
Sd/-
JUDGE Sd/-
JUDGE LRS.