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1976 DIGILAW 199 (KAR)

T. H. BUDRAMMA v. H. M. SOMASHEKHARAPPA

1976-11-12

NORONHA, RANGE GOWDA

body1976
RANGE GOWDA, J. ( 1 ) THE parties to this appeal are husband and wife, and this appeal by the wife is directed against the Order dated 19-11-1975 passed by the Principal civil Judge, Shimoga, in MC. No. 24/1974, allowing the petition filed by the respondent-husband under S. 12 (d) of the Hindu Marriage Act, 1955, (hereinafter called the Act), for dissolution of the marriage, with costs. ( 2 ) THE ground urged in the petition by the respondent while seeking the said relief was that the appellant was at the time of the marriage pregnant by some person other than himself. ( 3 ) IT appears the case was set down for evidence on 19-11-1975, and since the appellant's counsel was absent on that day, the respondent was examined in chief, as PW. 1, and two documents viz Ex. P-1 and P-2 were marked on his behalf. Then on the request of the appellant to grant her time till 3 p. m. , the learned Civil Judge acceded to her request in this manner ;"she asks for time till 3 p. m. and it is granted subject to the condition that if PW. 1 is not even examined the respondent will be set ex-parte. ". It appears, at 3 p. m. neither the appellant nor her counsel was present, and the learned Judge therefore made an order in the following terms : "hence the petition is allowed with costs". It is that order that is impugned in this appeal. ( 4 ) THE impugned order, in our opinion, cannot be sustained for more than one reason. In any proceeding under the Act, whether defended or not, the Court must be satisfied whether the ground for granting the relief exists. It is that order that is impugned in this appeal. ( 4 ) THE impugned order, in our opinion, cannot be sustained for more than one reason. In any proceeding under the Act, whether defended or not, the Court must be satisfied whether the ground for granting the relief exists. In other words, the Court must be satisfied that the requirements of s. 23 (1) of the Act are fulfilled while granting any relief under the Act, and this is how S. 23 (1) of the Act reads : " (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that ; (a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) where the ground of the petition is the ground specified in clause (f) of sub-sec (1) of Sec. 10, or in clause (i) of sub-sec (1) of Sec. 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and (c) the petition is not presented or prosecuted in collusion with the respondent, and (d) there has not been any unnecessary or improper delay in instituting the proceeding, and (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly. Secondly, before proceeding to grant any relief under the Act, it is the duty of the Court, in the first instance, in every case where it is possible to do so consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties; and that is what is provided in sub-sec (2) of S. 23 of the Act. But, in the case on hand, the learned Civil Judge has not taken care to see whether the order he was making would conform itself to the requirements of sub- secs (1) and (2) of S. 23 of the Act. But, in the case on hand, the learned Civil Judge has not taken care to see whether the order he was making would conform itself to the requirements of sub- secs (1) and (2) of S. 23 of the Act. Tt is obvious, he has not addressed himself to the question whether on the material on record he could satisfactorily record a finding in the affirmative as to the existence of the ground alleged by the respondent for the relief claimed by him. Indeed he has not recorded any finding to that effect, and the impugned order does not furnish any indication that he even referred to the evidence of the respondent. Further, the said order or the proceedings do not give any indication that he endeavoured to bring about a reconciliation between the the parties as provided by sub-sec (2) of S. 23 of the Act. Whether he applied his mind to the evidence and the documents marked as Exts. P1 and p2 before making the impugned order, the impugned order hardly throws any light. In these circumstances, we are constrained to think that he has severely transgressed the conditions mentioned in sub-secs (1) and (2) of s. 23 of the Act while making the impugned order. It is distressing to note proceedings of this kind being terminated in such a casual and hasty manner, where sufficient solemnity and serious consideration on the part of the authority concerned are required while dealing with such matters. Whether or not the appellant or her Counsel was diligent, in the circumstances stated above, we desist from saying anything. But the undue haste and the cursory manner in which the learned Civil Judge disposed of this matter totally overlooking the said provisions of law, do not commend themselves to us. Therefore, the impugned order, for the reasons stated above, stands vitiated. In that view of the matter, the impugned order is set aside and the matter is remitted to the Court below to dispose of the same as expeditiously as possible in accordance with law and in the light of the observations made above. No costs. Let a copy of this judgment be sent to the learned Civil Judge wherever he is now working. --- *** --- .