Karnataka High Court
Smt Chinni Sudeshna vs S Nagaraj on 1 October, 2015
Bench: N.K.Patil, P.S.Dinesh Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Dated this the 1st day of October, 2015
PRESENT
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
M.F.A. No.4081/2010 (FC)
BETWEEN:
SMT CHINNI SUDESHNA
W/O S. NAGARAJ
AGED ABOUT 53 YEARS
FORMERLY WORKING AS ASSISTANT MANAGER
VYSYA BANK LIMITED
MAREGOWDANAHALLI BRANCH AND POST
MYSORE DISTRICT
PRESENTLY WORKING AS CUSTOMER CARE MANAGER
ING VYSYA BANK
SIDDARTHA NAGAR BRANCH
MYSORE DISTRICT
AND ALSO RESIDING AT
FLAT NO.204, 2ND FLOOR
MYTHRI APARTMENT
SARASWATHIPURAM
MYSORE - 570 009 ...APPELLANT
(By Sri P D SURANA, ADV.,)
AND:
S. NAGARAJ
S/O LATE S. ADINARAYANA SETTY
AGED ABOUT 54 YEARS
FORMERLY RESIDING AT NO.140
EWS 1ST PHASE, K.H.B.COLONY
BASAVESHWARANAGARA
BANGALORE - 560 079
PRESENTLY R/AT NO.171, 2ND FLOOR
2
1ST CROSS, 4TH MAIN ROAD, INDUSTRIAL TOWN
OFF WEST OF CHORD ROAD
RAJAJINAGAR
BANGALORE - 560 044 .... RESPONDENT
(By Sri S NAGARAJ/RESPONDENT/PARTY-IN-PERSON)
THIS MFA FILED U/S 19(1) OF FAMILY COURTS ACT
R/W SEC.28(1) OF HINDU MARRIAGE ACT, AGAINST THE
JUDGMENT AND DECREE DATED:11.01.2010 PASSED IN
M.C.NO.418/2003 ON THE FILE OF THE 3RD ADDITIONAL
PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, ALLOWING
THE PETITION FILED U/S 13 OF HINDU MARRIAGE ACT FOR
DIVORCE.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.8.2015 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S. DINESH
KUMAR, J., DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed calling in question the judgment and decree dated 11.1.2010, in M.C.No.418/2003, on the file of the III Addl. Family Court, Bengaluru, allowing the petition filed by the respondent under Section 13 of the Hindu Marriage Act.
2. Briefly stated the facts of the case are, respondent filed the instant petition seeking divorce on the ground of harassment and cruelty by appellant-wife. By the impugned order, learned Family Court has allowed the petition dissolving the marriage between 3 the appellant and the respondent solemnized on 25.3.1981 at Bengaluru.
3. We have heard Shri P.D.Surana, learned Counsel appearing for the appellant and Shri S.Nagaraj, party in person.
4. Learned Counsel for the appellant contended that the impugned order is virtually an ex-parte order because, the Family Court did not have the benefit of appreciating the cross-examination of the respondent- petitioner. Adverting to the order sheet of the Family Court, particularly of 7.1.2010, he submitted that the appellant was working as an Assistant Manager in Vysya Bank at Mysuru at the material point of time and could not attend the hearing on the said date as it was difficult for her to get leave of absence from her duty. He further submitted that she was not in a position to attend on some other dates of hearing also for the same reason.
4
5. Adverting to the paragraph - 6 of grounds of appeal, he submits that the evidence of the respondent was concluded on 5.1.2010. Appellant did not have enough breathing time to prepare and adduce her evidence as the next adjourned date was 7.1.2010. She was not able to get leave sanctioned to attend the hearing on the said date also. From 7.1.2010, the petition was adjourned to 8.1.2010 to hear the arguments and to 11.1.2010 for judgment. On the said date, an application to recall the order dated 7.1.2010 and to permit the appellant to lead her evidence was filed. The said IA was rejected and subsequently, the impugned order was pronounced on the same day.
6. The learned Counsel for the appellant drew our attention to the impugned order, particularly, paragraphs No.10 & 11. Adverting to paragraph No.10, he submitted that the judgment of the family Court is based on the evidence of respondent alone. Adverting to paragraph No.11, he submitted that the inference of the Family Court that the appellant had not rebutted the 5 case of harassment and cruelty is perverse because, appellant's efforts seeking to recall order dated 7.1.2010 and the prayer for permission to lead her evidence were rejected without application of mind. He further submits that in view of rejection of appellant's prayer to recall order dated 7.1.2010, she could not substantiate her claim that the respondent was having an extra marital affair.
7. In sum and substance, he submitted that the judgment and decree of the family Court is based only on the material placed by the respondent - husband. He submitted that if the said application filed by the appellant to recall the order dated 7.1.2010 was allowed, she could have placed evidence to support her pleadings and the family Court would have had the benefit of both oral and documentary evidence on behalf of the appellant also before rendering its judgment. Therefore, the impugned order is virtually an ex-parte order and unsustainable in law. Accordingly, 6 he prays for setting aside the same by allowing this appeal.
8. Per contra, Sri S. Nagaraj, party-in-person, vehemently opposes the appeal urging following grounds:
(i) that the appellant has taken nearly four years from 2006 to 2010 to cross-examine him [PW.1];
(ii) that vide order dated 26.7.2005, this Court in W.P.No.47701/04 had directed that the instant proceedings before the family Court be disposed of within six months therefrom;
(iii) that notwithstanding the direction by this Court, proceedings were protracted by the appellant by continuous absence;
(iv) this Court while extending time to conclude the trial, vide order dated 16.9.2009 has directed as follows:-7
"ORDER Heard the counsel for the parties. Considering the request of III Addl. Prl. Judge, Family Court, Bangalore, dated 1.9.2009, as a last chance four months time is extended from today to dispose of the matter. Since a direction was issued by this Court on 26.7.05, no further letter of extension would be entertained and the Family Court is directed to report compliance. (sic) Sd/-
JUDGE."
(v) that in view of above directions, wherein, this Court had made it abundantly clear that no further request for extension would be entertained, appellant and respondent were duty bound to be vigilant and assist the family Court to complete the proceedings;
(vi) that even after order dated 16.9.2009, appellant did not diligently participate in the proceedings before the family Court and took as many as six adjournments. The order sheet discloses that 8 the appellant and her Advocate had remained absent on several dates right from the beginning of the proceedings.
9. Amplifying his contentions, though the respondent argued at length, the sum and substance of his arguments is that the appellant has never been diligent in defending the petition before the family Court. She has deployed all tactics to seek adjournments on one pretext or the other. Therefore, the learned family Court was fully justified in rejecting the IA filed by the respondent on 11.1.2010 and pronouncing the judgment.
10. In the light of the rival contentions of the parties, the point that arises for consideration of this Court is:
"Whether the judgment and decree dated 11.1.2010 in M.C.418/2003 is sustainable in law which is passed without the benefit of evidence on behalf of the appellant?"9
11. We have given our anxious consideration to the contentions urged on behalf of the appellant and the respondent and examined the material papers and trial Court records.
12. It is no doubt true that the instant petition was presented on 11.3.2003. This Court vide order dated 26.7.2005 had indeed directed that the petition be disposed of by the Family Court within an outer limit of six months therefrom. However, extension was granted from time to time ending with order dated 16.9.2009 extracted hereinabove, wherein this Court specifically directed that no request for further extension would be entertained. The contention of respondent/party-in- person is that despite such strict direction by this Court, appellant has unreasonably obtained six further adjournments thereafter and therefore this appeal deserves to be dismissed.
13. Perusal of the order sheet dated 11.1.2010 discloses that an IA to recall the order dated 7.10.2010 10 was presented by the appellant and the same stood rejected followed by pronouncement of judgment impugned in this appeal.
14. Learned Counsel for the appellant is right in his submission that the impugned order is based on the pleadings of both parties but evidence let in by the respondent alone.
15. Similarly, the submission of the respondent that the order sheet of the family Court discloses that the appellant and her Advocate were absent on several dates, prior to and after specific direction by this Court in the writ petition mentioned above also carries weight.
16. We are conscious of the fact that the learned Family Court was under strict direction by this Court vide order dated 16.9.2009 to complete the proceedings within an outer limit of four months therefrom as there is no scope to seek any further extension of time. 11
17. Respondent during the course of his arguments touched upon several issues on merits which in our opinion are not relevant for consideration of this appeal. He sought to rely upon several judgments annexed to the written arguments in support of his contention that appellant's conduct did not merit any further indulgence by this Court but mainly relied upon the judgment of Hon'ble Supreme Court in the case of Jai Prakash Singh V. State of Bihar reported in AIR 2012 SC 1676. Adverting to paragraph No.19 of the said judgment, he strongly argued that the appellant did not deserve any sympathy of this Court.
18. We have gone through the judgment of Hon'ble Supreme Court in the case of Jai Prakash Singh V. State of Bihar reported in AIR 2012 SC 1676 relied upon by the respondent. In the said case, Hon'ble Supreme Court was examining an appeal against an order granting anticipatory bail to an accused which was earlier rejected by the Session Court. In this context, the Hon'ble Supreme Court had made certain 12 observations in paragraph No.19. The sequitur from the said judgment is wholly inapplicable to the facts of this case.
19. We have also perused other judgments annexed to the written arguments:
1. In the case reported in ILR 1990 KAR 4190 (State of Karnataka V. M.S.S. Narayan), this Court was dealing with the matter concerning offence punishable under Section 5(1)(d) of Prevention of Corruption Act, The Karnataka Cement Control Order and other connected offences.
2. In the case reported AIR 2013 SC 3669 (Cine Exhibition Pvt. Ltd. V. Collector, District Gwalior and Ors.), the Hon'ble Supreme Court was dealing with a matter concerning filing of review applications in large numbers in undeserving cases without examining whether the cases strictly came within the narrow confines of Rule XL of Supreme Court Rules.
3. In the case reported in (2014)10 SCC 352 (Union of India (UOI) V. Jai Kishun Singh), Hon'ble Supreme Court was concerned with 13 undeserving candidates availing benefits under freedom fighter pension.
4. In the case reported in 2014(5) KarLJ 389 (K Shoukkathali V. The Registrar, the Vice Chancellor, Manipal University & others, this Court was examining a case in which the petitioner therein was expelled from a college on the ground of molestation of a girl.
5. In the case reported in AIR 2004 KAR 33 (Dr. D.Hemachandra Sagar and Anr. V. D.Prithviraj and Anr.), this Court was examining the capacity of respondent therein to pay the court fees who had availed the benefit of provision of exemption of court fee as an indigent person.
6. In the case reported in HJ 2004 (5) AWC 4790 (Radhey Shyam son of late Ram Ghulam Sharma V. Deputy Director of Consolidation and Ors.), the Hon'ble High Court of Allahabad was concerned with an application filed after lapse of ten years under the UP Consolidation of Holdings Act, 1953.14
7. In the case reported in 1987 ACJ 1102 (Lilawati and Ors. V. Rukhmani Devi and Ors.), the Hon'ble High Court of Allahabad was examining the negligence of a truck driver in a motor vehicles case and vicarious liability arising therefrom.
20. Having carefully examined the above judgments, we are of the view that none of the cases cited by the respondent contain a ratio which can be made applicable to the facts of the case on hand.
21. Respondent has also taken a contention with regard to delay in presenting this appeal in his statement of objections. Precisely, it is stated thus in his statement of objections:
"2. Whereas, U/s.19 (3) of the Family Courts Act, 1984, the limitation for preferring appeal is only 30 days from the date of judgment or order of a Family Court. That, the above appeal was filed on 24-05-10, admittedly, after delay of 21 days from the date of judgment i.e., 11-01- 2010 by deducting the time taken for grant of CCs & court vacation period.15
3. That, though, technically it is a delay of 21 days in filing the above MFA but, mathematically, it is delay of 132 days. Thus, the appellant was slept over the matter in filing the above appeal for 21 days beyond limitation as aforesaid and thus, not deligent but, negligent.
4. Hence, after waiting for the completion of the appeal period of 30 days from the date of judgment i.e., 11-01-10 to 10-02-10 and after verifying that, no appeal was filed by the appellant with in the said appeal period, the respdt. had waited for further period of 38 days (above the appeal period as aforesaid) and thus, got married on 21-03-10 with Smt. M.Krishnaveni by way of awaiting for 38 days more. The copy of the marriage certificate dt.25-03-11 is also produced for kind perusal."
22. The respondent has raised the question of limitation to justify his second marriage. Respondent has got married again on 21.3.2010. The impugned order was passed on 11.1.2010 and the appeal is presented on 24.5.2010. The case sought to be made out by the respondent is that he has married with one 16 Smt.Krishnaveni after the expiry of appeal period which according to the respondent is 30 days from the date of the judgment. In response to the contention with regard to limitation, learned Counsel for the appellant submitted that under Section 28(4) of the Act, the period of limitation to present an appeal from any decree or order is 90 days. He further submitted that the averments contained in the statement of objections filed by the respondent clearly discloses that he had got married before the expiry of the period of limitation on the premise that the period of limitation is 30 days which is misconceived in the face of Section 28(4) of the Act.
23. We have perused Section 28(4). Period of limitation therein is 90 days. Therefore, the objections with regard to limitation in presenting the appeal raised by the respondent deserves to be rejected.
24. We are also conscious of the fact that this Court has granted several extensions for disposal of 17 petition by the Family Court. Notwithstanding the same, considering the fact that this is a family dispute and a decree of divorce shall have for reaching consequence on the lives of parties, we are persuaded to grant one last opportunity to the appellant wife to bring on record her evidence, if any, for better appreciation by the learned family Court. In furtherance of this view, we find it appropriate to set aside the impugned order and issue a peremptory direction with a strict time line to complete the proceedings to enable the learned family Court to pass an appropriate judgment and order in accordance with law.
25. In the result, we pass the following:-
ORDER
(i) Appeal is allowed;
(ii) Judgment and order dated 11.1.2010 in M.C.No.418/2003 on the file of the III Addl. Family Court, Bengaluru is set aside and the matter is remitted back to the Family Court, Bengaluru for fresh disposal in accordance with law;18
(iii) The Family Court is directed to grant an opportunity to the parties to produce further documentary and oral evidence and thereafter to hear them and dispose of the petition as early as possible and at any rate within a period of six months from the date of appearance of the parties;
(iv) All contentions of both parties on merits are left open and they shall be at liberty to urge them before the learned Family Court;
(v) Parties are directed to appear before the
Jurisdictional Family Court on
2.11.2015 at 11.00 a.m without notice and collect further hearing dates.
Ordered accordingly.
No costs.
Sd/-
JUDGE Sd/-
JUDGE cp*