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2013 DIGILAW 1015 (KAR)

Sahana v. Shivanand

2013-08-29

K.L.Manjunath, S.N.Satyanarayana

body2013
JUDGMENT K.L. Manjunath, J : Though the matter is listed for orders on I.A. claiming maintenance by the appellant, by consent of the parties the appeal is taken up for final hearing. 2. The appellant wife is challenging the legality and correctness of the judgment and decree of divorce granted by the Senior Civil Judge, Koppal, on 15.12.2012, in M.C.No.39/2012. 3. The admitted facts are as hereunder: The marriage between the appellant and the respondent was solemnized on 9.2.2011. The husband filed a petition under Section 13(1)(1-a) of the Hindu Marriage Act, seeking decree of dissolution of marriage on the ground of cruelty. According to the husband, he lived with his wife happily for a period of one year and on 14.3.2012 his wife left the matrimonial home to celebrate Ugadi Festival at her parents house and later has not turned up. It is also his case that during her stay with him she failed to discharge the marital obligations and was not willing to prepare food and do other household work. When the husband was not keeping well on 19.12.2011, she did not care to look after him and he got issued a legal notice on 9.8.2012 which notice was returned un-served. Therefore, petition came to be filed. 4. The appellant wife was placed exparte on the ground that in spite of service of summons she failed to contest the case. Thereafter husband got himself examined as PW.1 and relied upon Ex.P.1 to PA. He also examined two more witnesses by name Pampapathi and Shivaputrappa as PWs.2 and 3. The trial Court allowed the petition and granted divorce on 15.12.2012. 5. Challenging the same, the present appeal is filed. The main contention of the appellant is that, no Court notice or summons were served on her and without service the respondent husband managed to obtain a decree of divorce. That the entire allegations made by the husband in regard to cruelty is false and on the contrary it is her mother-in-law and sister-in-law treated her with utmost cruelty and that the respondent is a puppet in the hands of his mother. Therefore, she requests the Court to set aside the order and remand the matter to the trial Court. 6. Therefore, she requests the Court to set aside the order and remand the matter to the trial Court. 6. An attempt is made by the Counsel for the respondent to contend that in spite of service of notice the appellant failed to contest the case and he request the Court to dismiss the appeal. 7. We have seen the trial Court records. The certified copy of the documents produced by the appellant's Counsel show that the appellant never refused to receive the same. On perusal of the RPAD cover, we notice that a seal is said to have been put by the postal authorities stating that 'unclaimed to sender'. But there is nothing to show that it was actually tendered to the appellant and she refused to receive it or did not claim the same. Whenever a notice is returned in such a manner, in connection with the matrimonial matters the Court shall be very slow, care and cautious while placing the spouse exparte, it is very easy for the others to get a decree of divorce and in such circumstances the Court was bound to issue one more notice to see that notice is served through the postal authorities or through the process server of the Court. Without even sending notice through the process server, based on the postal seal, the appellant has been placed exparte which according to us is an error committed by the Civil Judge (Sr. Dn.). 8. We have also seen the evidence of the respondent. On perusal of the evidence let in by the respondent, it is difficult for any Court to accept that the appellant has treated the respondent with utmost cruelty, because in the body of the petition he has clearly stated that all was well and that they lived happily for a period of one year. The marriage was solemnized on 9.2.2011. If both the husband and wife were living together at Rubli for a period of one year, the alleged cruelty meted out to him by the appellant has to commence from February 2012. The petition is filed in August 2012. So he has to narrate the incidents which according to him has to be termed as cruelty. If both the husband and wife were living together at Rubli for a period of one year, the alleged cruelty meted out to him by the appellant has to commence from February 2012. The petition is filed in August 2012. So he has to narrate the incidents which according to him has to be termed as cruelty. In para 5 of the examination-in-chief he has deposed that the appellant was carrying and there was a miscarriage on 16.8.2011 and she was taken to PRC, Indaragi, for treatment and thereafter at Tavargere nursing home at Dharwad. It is also his case that from March 2012 they are not living together because in the month of March 2012, the appellant went to her parents house to celebrate Ugadi Festival. If for a period of one year from 9.2.2011 the husband and wife were happily lived and if the wife is living separately from 14.2.2012, no Court can accept that the appellant has treated the respondent with utmost cruelty in one month. There are no proper pleadings to that effect and no evidence is also let in by the respondent. Based on such evidence no Court can grant a decree of divorce on the ground of cruelty. According to us there is no proper pleading and no proper evidence has also been let in to prove the contentions of the respondent husband in regard to cruelty. In the circumstances we are of the opinion, even if the appellant had not contested the case in spite of service of notice to her, the trial Court could not have granted a decree of divorce on the ground of cruelty based on the pleadings and evidence of the respondent. 9. In the result, the appeal is allowed. The judgment and decree of divorce granted by the Senior Civil Judge, Koppal, in M.C.No.39/2012 dated 15.12.2012 is hereby set aside. The matter is remanded to the trial Court for fresh consideration in accordance with the law. 10. In view of the disposal of the appeal, the application I.A.No.3/2013 filed by the appellant for grant of maintenance stands disposed of granting liberty to the appellant to make an application before the trial Court for grant of maintenance. If such application is filed, it is for the Court below to consider the application for grant of interim maintenance in accordance with law. Appeal allowed.