Karnataka High Court
Smt Sangeeta Sakri W/O Avinash Mustoor vs Avinash S/O Venkatesh Mustoor on 24 June, 2021
Bench: S.G.Pandit, M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JUNE 2021
PRESENT
THE HON'BLE MR.JUSTICE S.G.PANDIT
AND
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MISCELLANEOUS FIRST APPEAL NO.200210/2021 (MC)
Between:
Smt. Sangeeta Sakri W/o Avinash Mustoor
S/o Siddalingappa, Age: 29 Years
Occ: Jana Small Finance Limited
Lingareddy Building, Kalangataki Road
Saraswatipuram, Dharwad
... Appellant
(By Sri Sanjeevkumar C. Patil, Advocate)
And:
Avinash S/o Venkatesh Mustoor
Age: 32 Years, Occ: Private Employee
R/o Ranganath Nilaya, Balaji Nagar
Yadgir, Tq. and Dist. Yadgir-585 201
... Respondent
(Sri G.G. Chagashetti, Advocate)
This Miscellaneous First Appeal is filed under Section 28(1)
of Hindu Marriage Act, 1955, praying to set aside the judgment
and decree dated 03.02.2021 passed by the Senior Civil Judge,
Yadgiri in M.C.No.14/2020 by allowing the appeal.
This appeal coming on for Admission, this day, S.G.PANDIT
J., delivered the following:
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JUDGMENT
This appeal is by the wife filed under Section 28(1) of the Hindu Marriage Act, 1955 (for short, 'the Act') assailing the judgment and decree dated 03.02.2021 in M.C.No.14/2020 passed by the learned Senior Civil Judge at Yadgiri.
2. Facts leading to filing of this appeal briefly stated are that appellant and the respondent are wife and husband. Their marriage was solemnized on 16.05.2019. It is stated that after the marriage, both the appellant and respondent initially stayed for together at Yadgiri for two months, thereafter they stayed six months at Dharward. It is alleged that respondent-husband had received photo of one Yankanna Badiyal on his Whatsapp in which appellant- wife was seen in the photo along with said Yankanna Badiyal and it is also alleged that when police enquired with said Yankanna Badiyal, he admitted that he was in illegal relationship with the appellant-wife. Therefore, 3 the respondent-husband filed petition under Section 13(1)(a) of the Act seeking dissolution of marriage.
3. Before the trial court, though notice was served the appellant-wife remained absent and was placed ex parte. The respondent-husband in order to prove his case got examined himself as P.W.1 and got marked as many as seven documents at Exs.P.1 to 7. The trial court after hearing the respondent-husband, proceeded to pass judgment, allowing the petition and dissolved the marriage of the appellant and respondent solemnized on 16.05.2019. Against which, the appellant-wife is before this court in this appeal.
4. Heard the learned counsel Sri Sanjeev Kumar C. Patil for appellant-wife and Sri G.G. Chagshetti appearing for respondent-husband and perused the records.
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5. The only ground urged by the learned counsel for the appellant-wife is that the appellant had no opportunity to defend herself before the trial court. It is his submission that the petition was filed before the trial court on 15.07.2020 and on 24.08.2020 the court recorded that notice to respondent was served. The learned counsel submits that notice was served upon the appellant but she could not appear before the trial court due to Covid-19 pandemic period as there was restrictions on travel and the appellant could not engage an advocate in time to appear before the court. The trial court proceeded to record the evidence of the respondent-husband in a hurried manner and passed the impugned judgment on 03.02.2021. Thus, the appellant-wife prays for an opportunity to defend herself before the trial court.
6. On the other hand, the learned counsel for the respondent-husband submits that even after 5 sufficient opportunity, the appellant-wife failed to appear before the trial court and defend herself. It is further submitted that the respondent-husband produced and got marked reply notice as Ex.P.3, wherein she has admitted her illegal relationship with one Venkanna Badiyal. Therefore, he submits that the respondent-husband has proved the ground of cruelty and thereby he justifies the impugned judgment passed by the trial court and thus prays for dismissal of the appeal.
7. On hearing the learned counsel and on perusal of the order passed by the trial court, the only point which falls for consideration is:
Whether the trial court was justified in disposing of the petition granting decree of dissolution of marriage of the parties to the appeal placing the appellant-wife ex parte during the Covid-19 pandemic?6
The answer to the above point is in the 'Negative' for the following reasons.
8. The marriage of the appellant and the respondent had taken place on 16.05.2019. Both the learned counsel submit that initially after the marriage both the wife and husband were residing at Yadgir for two months and thereafter they resided at Dharwad for a period of six months. Subsequently, due to certain differences, the respondent-husband filed petition under Section 13(1)(ia) of the Act seeking dissolution of the marriage. It is pertinent to note that there is no dispute with regard to service of notice on the appellant-wife in the proceedings before the trial court. It is the specific case of the appellant that due to Covid-19 pandemic, she could not engage the counsel and appear before the trial court in time as there was travel restrictions. The appellant is residing at Dharwad, but the petition for dissolution of marriage is filed before the Senior Civil 7 Judge at Yadgiri. We take judicial notice of the fact that at the relevant point of time there was travel restrictions due to Covid-19 pandamic. Under such circumstances, we are inclined to accept the contention of the appellant that due to Covid-19 pandemic situation she could not travel to Yadgiri and engage the counsel in time. Definitely, the appellant is entitled for an opportunity to defend herself before the trial court. Only on the ground of want of opportunity to the wife that too during Covid-19 pandamic period, we allow the appeal and set aside the judgment and decree dated 03.02.2021 in M.C.No.14/2020 passed by the Senior Civil Judge, Yadgiri and the matter is remanded to the trial court for fresh consideration in accordance with law.
The parties to appear before the trial court on 16.07.2021, without expecting any fresh notice from the trial court. The trial court to dispose of the petition as 8 expeditiously as possible after giving opportunity to both the parties in the matter.
The parties are directed to co-operate for expeditious disposal of the case.
Sd/-
JUDGE Sd/-
JUDGE BL