Karnataka High Court
V Gayathri vs Ramesh Raju on 9 October, 2020
Bench: B.V.Nagarathna, N S Sanjay Gowda
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 09TH DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA
M.F.A. No.5918/2013 (FC)
BETWEEN:
V. GAYATHRI
W/O. RAMESH RAJU
D/O. VENKATA RAJU,
AGED 39 YEARS,
NO.7/54, N.R. COLONY,
BEHIND KEB NEW PET,
ANEKAL TOWN, ANEKAL,
BANGALORE RURAL DISTRICT. ... APPELLANT
(BY SRI G.B. NANDISH GOWDA FOR SRI R.B. SADASIVAPPA,
ADVOCATES (THROUGH VIDEO CONFERENCE))
AND:
RAMESH RAJU
S/O. VASANTH RAJU,
AGED 52 YEARS,
NO.134, 7TH MAIN,
3RD STAGE, 4TH BLOCK,
BASAVESHWARA NAGAR,
BANGALORE - 560 079. ... RESPONDENT
(BY SRI RAMAKRISHNA HEGDE FOR SRI VEERANNA G. TIGADI,
ADVOCATES (THROUGH VIDEO CONFERENCE))
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, AGAINST THE JUDGMENT AND DECREE
DATED:15.04.2013 PASSED IN M.C. NO.2132/2010 ON THE
FILE OF THE 5TH ADDITIONAL PRINCIPAL JUDGE, FAMILY
COURT, BANGALORE, ALLOWING THE PETITION FILED U/SEC
13(1)(ia) & (ib) OF THE HINDU MARRIAGE ACT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, NAGARATHNA J., MADE THE FOLLOWING:
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JUDGMENT
This appeal is filed by the wife, calling in question the judgment and decree passed by the V Additional Principal Judge, Family Court, Bengaluru, dated 15/04/2013, in M.C.No.2132/2010.
2. By the said judgment and decree, the petition filed by the respondent under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act" for short) seeking a decree of dissolution of marriage by divorce has been granted. Being aggrieved, the wife has preferred this appeal.
3. We have heard learned counsel for both parties and perused the material on record as well as the original record.
4. Appellant's counsel drew our attention to the impugned judgment and contended that the husband had sought for dissolution of marriage by a decree of divorce, while the wife filed a counter claim under Section 9 of the Act seeking restitution of conjugal rights. That the husband had let-in his evidence as PW.1 and got marked three documents as Exs.P-1 to P-3 and was cross- examined. Thereafter, the matter was slated for wife's -: 3 :- evidence. She filed her affidavit by way of examination-in- chief evidence on 07/12/2012 and was partially examined. Subsequently, her evidence was not concluded as she did not let-in her further evidence. In the circumstances, the Family Court ought to have granted her another opportunity to let-in her evidence. The reason as to why she could not let-in her evidence on the stipulated dates was on account of hospitalization of both her parents and she had to take care of them. Hence, she could not attend to the Court proceeding. Therefore, in the absence of any evidence being concluded from the side of the appellant/wife, the Family Court did not have any version on the side of appellant/wife and the case of the appellant with regard to restitution of conjugal rights has not been considered, instead, the Family Court granted a decree of divorce under Section 13(1)(ia) and (ib) of the Act and dissolved the marriage between the parties.
5. Learned counsel for the appellant submitted that the impugned judgment and decree is virtually an ex parte one inasmuch as the version of the appellant/wife was not placed on record fully and neither was her case filed by way of counter claim under Section 9 of the Act considered by the Family Court. Therefore, the impugned -: 4 :- judgment and decree may be set aside and the matter may be remanded to the Family Court for a fresh consideration.
6. Per contra, learned counsel for the respondent/husband supported the impugned judgment and decree and contended that despite several opportunities being granted to the appellant/wife, she did not make use of the said opportunities and that the Family Court has rightly rejected her application seeking permission to let-in her evidence. There is no merit in the appeal and the appeal may be dismissed.
7. Having heard learned counsel for the respective parties, the following points would fall for our consideration:
(i) Whether the impugned judgment and decree passed in M.C.No.2132/2010, dated 15/04/2013 calls for any interference?
(ii) What order?
8. It is not in dispute that the respondent had filed petition under Section 13(1)(ia) and (ib) of the Act seeking dissolution of his marriage with the appellant, which had taken place on 20/04/1992 at Anekal, Bengaluru Rural District. It is also not in dispute that in -: 5 :- the said petition, appellant/wife had sought restitution of conjugal rights by way of counter claim under Section 9 of the Act. The respondent/husband has let-in his evidence as PW.1 and got marked three documents as Exs.P-1 to P-3.
The respondent was also cross-examined by the appellant herein on 24/08/2012. Thereafter, the matter was slated for respondent's evidence on 22/09/2012. Subsequently, it was posted on 10/10/2012 and thereafter on 09/11/2012 and then on 28/11/2012 and finally the case was posted on 07/12/2012. On that day the appellant/wife had filed her affidavit by way of examination-in-chief. She had partly examined as RW.1. The case was posted for further evidence of RW.1 on 16/01/2013 and then again on 11/02/2013 and thereafter to 07/03/2013 and on that date her evidence was expunged and the case was posted for arguments on 27/03/2013 and on 27/03/2013, the respondent's counsel addressed his arguments and the case was posted for judgment on 15/04/2013. On 15/04/2013, the appellant/ wife had filed an application for recalling of the order dated 07/03/2013 so as to let-in further evidence. She has stated that her parents were admitted in hospital due to various ailments and she remained absent on the previous hearing dates. She had also produced medical certificates in support of her plea, -: 6 :- but the said application was dismissed on the ground that once the matter has been heard and posted for judgment, nothing is required to be done by the Court except to pronounce the judgment and interlocutory application to reopen the case and record further evidence after the matter is reserved for pronouncement of judgment would not arise. Hence, the impugned judgment and decree was passed by dismissing the application filed by the appellant/wife seeking recall and grant of permission to let-in her evidence.
9. On perusal of the said order sheet of the Family Court, what emerges is the fact that the appellant/wife has not let-in her evidence fully so as to rebut the case of the respondent/husband who has sought for dissolution of marriage by a decree of divorce and consequently, her case seeking restitution of conjugal rights has also not been considered by the Family Court. Had the Family Court also given an opportunity to the appellant/wife to let-in her evidence, the said Court would have had the benefit of her version of the case and thereafter, the matter could have been disposed of in accordance with law. Instead, the case of the appellant/wife seeking restitution of conjugal rights has -: 7 :- not been considered at all inasmuch as the appellant/wife did not let-in any evidence and the trial Court has answered that she had not made out a case for restitution of conjugal rights. That is precisely the case of the appellant/wife that she had no opportunity to let-in her evidence with regard to seeking restitution of conjugal rights. Had her evidence also been placed on record, then the Family Court would have had to decide on her counter claim also and the judgment and decree of the Family Court may have been different from what it is now. In the circumstances, we find that the appellant/wife had genuine reason in not appearing before the Court on the stipulated dates inasmuch as her parents were hospitalized and therefore, she was unable to attend to the proceeding. Therefore, we think that the principles of natural justice would be subserved if we give one more opportunity to the appellant/wife to let-in her evidence, both vis-à-vis the petition filed by the respondent/husband and also on her own counter claim under Section 9 of the Act.
10. In the circumstances, the impugned judgment and decree of the Family Court is set aside. The matter is remanded to the Family Court for enabling the appellant/wife to let-in her evidence in the proceeding. -: 8 :-
11. Since the parties are represented by their respective counsel, they shall appear before the Family Court on 11/11/2020 without expecting any separate notices from the said Court.
12. It is needless to observe that the Family Court shall reconsider the case of the respective parties after giving an opportunity to the appellant/wife to let-in her evidence in the matter and to dispose of the matter in accordance with law.
13. The appeal is allowed and disposed of in the aforesaid terms.
Since the proceeding before the Family Court is of the year 2010, both parties are directed to co-operate with the Family Court for expeditious disposal of the proceeding.
Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE S*