Manipur High Court
Konsam Rajesh Singh vs Sarangthem Asana on 13 December, 2021
Author: Sanjay Kumar
Bench: Mv Muralidaran, Sanjay Kumar
Item No.1,2 (Suppl.)
(through video conferencing)
LAIREN Digitally signed
MAYUM byLAIRENMAYUM
INDRAJE INDRAJEET
SINGH
IN THE HIGH COURT OF MANIPUR
ET Date: 2021.12.15 AT IMPHAL
16:28:51 +05'30'
SINGH
MAT. APP. NO. 1 OF 2021
WITH
MC(MAT.APP.) NO. 3 OF 2021
Konsam Rajesh Singh, aged about 39 years,
s/o Konsam Thambou Singh, resident of
Wangkhei Laishram Leikai, P.O. Imphal,
P.S. Porompat, Imphal East District, Manipur.
Appellant.....
Vs.
Sarangthem Asana, aged about 37 years,
w/o Konsam Rajesh Singh of Wangkhei
Laishram Leikai, P.O. Imphal, P.S. Porompat,
Imphal East District, at present residing at
Haobam Marak Keisham Leikai, P.O. Imphal,
P.S. Singjamei, Imphal West District, Manipur.
Respondent......
BEFORE
HON'BLETHE CHIEF JUSTICE MR. SANJAY KUMAR
HON'BLE MR. JUSTICE MV MURALIDARAN
For the Appellant : Mr. N. Ibotombi, Senior Advocate.
For the Respondent : Mr. H.S. Paonam, Senior Advocate,
assisted by Mr. Boboy Potsangbam, Advocate.
Date of Judgment : 13.12.2021.
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J U D G M E N T (ORAL)
(Sanjay Kumar, CJ):
The appellant is the husband. He filed this appeal aggrieved by the judgment dated 30/01/2021 of the Family Court, Manipur, in Matrimonial (Divorce) Case No. 41 of 2020, granting a decree of divorce to the respondent-wife under Section 13(1)(ia) of the Hindu Marriage Act, 1955, along with other reliefs. He seeks suspension of the judgment and decree under appeal, vide MC (Mat.App.) No. 3 of 2021.
2. Heard Mr. N. Ibotombi, learned senior counsel, appearing for the appellant-husband; and Mr. H.S. Paonam, learned senior counsel, appearing for the respondent-wife.
3. The wife filed the subject divorce petition before the Family Court, Manipur, on the ground of cruelty, in September, 2020. The husband entered appearance before the Family Court on 01/10/2020 and was granted leave to be represented by a legal practitioner. An order was passed by the Family Court on that day referring the couple for counseling, as requested by the learned counsel for the parties. The order dated 01/10/2020 also demonstrates that the counseling was fixed on 22/10/2020 and the report of the counseling was to be filed on 09/11/2020. However, the Counselor filed the report of counseling on 19/12/2020 stating that on 14/12/2020, the counsel for the husband appeared and asked for a further chance for counseling on 19/12/2020, but they had failed to appear on that day till 1.30 p.m. The Counselor recorded the absence of the husband and concluded that no amicable settlement could be made between the parties.
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4. Thereupon, the Family Court passed an order on 19/12/2020 recording the presence of the wife along with her learned counsel and also the contents of the Counselor's report. Noting the absence of the husband, the Family Court observed that he had failed to appear in spite of sufficient opportunities being given to him and opined that he was not interested in contesting the matter. He was set ex parte and the case was adjourned to 02/01/2021 for framing of the points for determination. On 02/01/2021, the Family Court heard the learned counsel for the wife and framed three points for determination: (1) Whether the respondent- husband treated the petitioner-wife with cruelty or not? (2) Is there any cause of action for the petitioner to file the suit or not? and (3) Whether the petitioner is entitled to the reliefs claimed or not?
5. An interim direction was also granted on that day permitting the wife to take back her stridhan/awunpot articles, as detailed in the list furnished, on 08/01/2021. The matter was adjourned for a report in that regard and for examination of PWs. On 13/01/2021, the wife examined herself as PW-1 and three other witnesses as PW-2, PW-3 and PW-4. She marked in evidence nine documents. Thereupon, the Family Court considered the case in the context of the points for determination and having held in favour of the wife on all three, the Family Court decreed the suit, granting the following reliefs to the wife:
'(1) The marriage between the parties is hereby dissolved by a decree of divorce from the date of decree.
(2) the permanent custody of the minor child, Agastya Konsam, is given to the petitioner. The respondent shall have visitation rights to the child on the last Sunday of every month.
Page 3 (3) The stridhan/awunpot articles shall be taken back by the petitioner and that the respondent shall give back the articles as listed below peacefully to the petitioner.' Aggrieved by the same, the husband is in appeal. At this stage, it may be noted that Mr. N. Ibotombi, learned senior counsel, fairly stated that the husband has no objection to the return of stridhan/awunpot articles to the wife, as directed by the Family Court.
6. The admitted facts: The parties got married as per Hindu rites and customs on 16/02/2011 and a son, Agastya Konsam, was born to them on 03/01/2013. The wife is a Commandant in the Home Guards at Lamphelpat, Imphal West, whilst the husband is a businessman, dealing with computers and peripherals, at Thangal Bazar in Imphal. The wife sought dissolution of the marriage citing grounds of cruelty. As stated earlier, she examined three independent witnesses to prove her claim that she was subjected to cruelty by the husband and their evidence was accepted and acted upon by the Family Court.
7. Significantly, the husband did not participate in the proceedings before the Family Court. That is the main point argued and stressed upon by Mr. N. Ibotombi, learned senior counsel. However, having considered the material placed on record, we are of the opinion that the husband has no one other than himself to blame for the same. As already noted, he entered appearance and was permitted legal representation by the Family Court on 01/10/2020. Though the case was referred for counseling at the request of both the learned counsel for the parties, as reflected in the order dated 01/10/2020 passed by the Family Court, Page 4 admittedly, he never appeared before the Counselor. In his grounds of appeal, the husband claimed that his counsel informed the Counselor on 06/11/2020 that he wanted to contest/defend the case and that the matter should be sent back to the Family Court for trial. According to him, instead of doing so, the Family Court fixed 30/11/2020 for counseling again. He further claimed that, on 30/11/2020, 08/12/2020 and 14/12/2020, his counsel informed the Counselor that he wanted to defend the suit on merits but the Counselor again fixed the matter on 19/12/2020. These claims are belied by the report dated 19/12/2020 of the Counselor, wherein it was specifically recorded that the learned counsel for the husband appeared on 14/12/2020 and sought another chance for counseling on 19/12/2020. That apart, if the oral requests allegedly made on 06/11/2020, 30/11/2020, 08/12/2020 and 14/12/2020 did not yield the desired result, it is difficult to accept that the learned counsel for the husband would not have put it in writing before the Counselor that there was no scope for amicable settlement and that the matter should be sent back to the Family Court for trial. However, no such steps seem to have been taken. In any event, this Court cannot doubt the report of the Counselor, who has no personal interest in the matter and has no reason to state incorrect facts.
8. This being one aspect of the matter, the husband also denied knowledge of the proceedings before the Family Court from 19/12/2020 onwards till the passing of the judgment on 30/01/2021. According to him, his counsel went to the office of the Counselor on 22/12/2020 and was informed that the report had been submitted on Page 5 19/12/2020 to the Family Court. He claimed that his counsel enquired with the Bench Clerk of the Family Court and was told that all the cases fixed on 19/12/2020 had been posted on 05/02/2021. He then stated that his counsel appeared before the Family Court on 05/02/2021 but did not find the subject case in the cause list. According to him, it was only then that an enquiry was made and it came to light that case was disposed of by the Family Court on 30/01/2021 itself.
These claims of ignorance by the husband also do not merit acceptance. The issue is whether he took steps to track the progress of the case and whether he had the means to know what was happening. He cannot be permitted to rely on his own carelessness and lack of diligence and conveniently claim ignorance at this stage.
The orders of the Family Court which were uploaded online assume great relevance in this regard. The order dated 19/12/2020 was uploaded on the website of the Family Court. Therein, it was recorded that the husband was set ex parte and that the case was adjourned to 02/01/2021 for framing of the points for determination. However, a dispute is raised as to when this order was uploaded on the website. Mr. N. Ibotombi, learned senior counsel, contended that this order was uploaded only on a later date. This contention warrants rejection as RK Tamphasana Devi, the Bench Reader of the Family Court, Manipur, filed affidavit dated 05/10/2021 stating that she had uploaded the case status of the subject case on each and every date, including 19/12/2020. The learned Judge, Family Court, Manipur, also certified to this effect by his letter dated Page 6 29/10/2021, wherein he stated that his Bench Clerk had updated the daily business report in the subject case on 19/12/2020 and that an affidavit to that effect was given by her after taking verbal permission from him. Apart from this, the Central Project Coordinator of this Court communicated with the National Informatics Centre and it was confirmed that the proceedings in relation to the subject case were uploaded on 19/12/2020 itself. Therefore, the information as to the husband being set ex parte was available on the website on 19/12/2020 itself and once it was in the public domain, the husband cannot claim ignorance of the same. Further, there is no evidence of the learned counsel for the husband taking any of the usual steps to ascertain the status of the case when he went to the Family Court, Manipur, to check on its next date of hearing. The claim of the husband is that his counsel merely enquired with the Bench Clerk as to what had happened on 19/12/2020 and was told that all the cases had been adjourned to 05/02/2021. There is not even a mention of the counsel verifying the status of the case in the records maintained by the Family Court which would have been available for perusal by the counsel.
9. Another ground that has been urged by the husband is that there is a discrepancy in the dates mentioned in the judgment and the decree contrary to Order 20 Rule 7 CPC. This provision mandates that the decree should bear the date, being the day on which the judgment was pronounced, and when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he should sign the decree. The decree in the present case does not separately bear a date at Page 7 the top but begins by stating: 'This suit coming on 30/01/2021 for final disposal ..... it is ordered and decreed that the marriage .... stands dissolved by this decree of divorce....'. Having verified it, the learned Judge, Family Court, Manipur, signed the decree on 04/02/2021. Therefore, the date mentioned in the decree tallies with the date of the judgment, viz., 30/01/2021, and the signature of the Judge on the decree bears the date 04/02/2021. In effect, there is no violation of the statutory mandate.
10. Mr. N. Ibotombi, learned senior counsel, would further contend that the Family Court ought not to have taken up the matter for hearing in the light of the notifications issued by the High Court of Manipur, regulating case hearings during the pandemic. Reliance in this regard is placed on the Notifications dated 17/06/2020, 30/11/2020 and 14/01/2021. The learned senior counsel would point out that, as per these notifications, urgent pending cases were permitted to be taken up with the permission of the Presiding Officer or if both the parties move a joint application. However, in the case on hand, it may be noted that the husband had been set ex parte on 19/12/2020 and therefore, the question of filing a joint application after that date did not arise. If the wife sought speedy disposal of the case thereafter, there was nothing wrong in the Family Court taking up the case. It is not as if all judicial work stood suspended owing to the pandemic and it was for the Presiding Officers to decide whether any particular case should be taken up for hearing and disposal. The learned Judge, Family Court, Manipur, deemed it appropriate to take up this case, wherein the husband had been set ex parte, and deal with it as per due Page 8 procedure. This Court therefore finds no error committed by the Family Court, Manipur, in doing so.
11. Another issue that has been raised by the husband is that he filed his written statement in the main case on 22/10/2020 but despite the same, the Family Court did not take it into account. He further claimed that his written statement was stealthily removed from the case record. However, the case status reports placed before this Court by the husband himself indicate otherwise. The daily status report of 22/10/2020 shows that the 'Next Purpose' for which the case was adjourned was for 'appearance and W/S' and the same entry was there in the status reports of 06/11/2020 and 30/11/2020. If the husband had already filed his written statement on 22/10/2020, his counsel would have brought it to the notice of the Court that the daily status reports were erroneous and that the written statement was already on record. However, no such steps were taken at that time though the husband was set ex parte much later. No steps seem to have been taken as regards the 'stealthy removal' of the said written statement. Not even a complaint seems to have been made.
12. Be it noted that the Family Court, Manipur, did not hold in favour of the wife without process. Four witnesses, including the wife, had been examined and the three independent witnesses supported her claim of being subjected to cruelty. It was on the basis of this independent evidence that the Family Court granted a decree of divorce. It is not the contention of Mr. N. Ibotombi, learned senior counsel, that the said evidence was unreliable or unworthy of consideration. No arguments were Page 9 advanced on those lines. Further, it is not his case that the husband wants to resume marital ties with his wife and that is the reason why he seeks to challenge the decree of divorce. It is not stated so in the grounds of appeal or the so-called written statement that the husband claims to have filed. On the other hand, he seems to be aggrieved only by the finding of cruelty recorded against him. However, no tenable grounds have been made out warranting interference with that finding.
13. Lastly, Mr. N.Ibotombi, learned senior counsel, would point out that no prayer was made by the wife for custody of the child but despite the same, the Family Court granted permanent custody to her. To this extent, the learned senior counsel has raised a valid point. It was not within the domain of the Family Court to grant a relief which was not even sought. That part of the judgment and decree therefore need to be set aside. However, Mr. N. Ibotombi, learned senior counsel, fairly states that, as the child remained with the wife all through, there is no objection to the child remaining with her for the time being and that he would advise his client to take independent steps for securing the custody of the child in accordance with due procedure by approaching the competent forum.
14. In the light of the above facts, this Court finds no grounds to accept the plea of the husband to turn back the clock by remanding the case so that he can contest the divorce petition before the Family Court, Manipur. His own carelessness and negligence led to the passing of the subject ex parte judgment and decree of divorce and having slept through the case all along, it is not open to him to now seek such relief. The Page 10 judgment was based on the evidence adduced and does not warrant interference at the behest of the husband, who remained steadfast in ignoring the proceedings while they went on.
15. As there is no contest to the judgment in so far as return of the stridhan/awunpot articles are concerned, that issue need not trouble this Court. However, the judgment and decree are set aside in so far as grant of permanent custody of the minor son, Agastya Konsam, to the wife, is concerned. The minor son shall remain with the mother till the issue of his custody, if raised by way of separate proceedings, is decided by the competent forum.
The appeal therefore succeeds only to this extent and is accordingly allowed-in-part. The decree of divorce and the direction to return the stridhan/awunpot articles stand confirmed and the appeal shall stand dismissed to that extent.
MC (Mat.App.) No. 3 of 2021 does not survive for consideration in the light of this judgment and is accordingly dismissed.
In the circumstances, there shall no order as to costs. A copy of this order shall be supplied online or through whatsapp to the learned counsel for the parties.
JUDGE CHIEF JUSTICE
bidya
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