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2014 DIGILAW 650 (KAR)

SAKSHI @ SHWETA v. SUNIL

2014-07-09

K.BHAKTHAVATSALA, PRADEEP D.WAINGANKAR

body2014
JUDGMENT This is an appeal filed under Section 19 (1) of the Family Courts Act directed against the judgment and decree of divorce dated 06.02.2013 made in M.C.No.86/2012 on the file of Family Court at Belgaum. 2. Brief facts of the case leading to the filing of the appeal may be stated as under: The appellant (in short, ‘the wife’) got married to the respondent (in short, ‘the husband’) on 10.7.2005. Out of the said wedlock, she has given birth to a male child. On 26.3.2012, the respondent filed a petition under Section 13(1)(ia) (ib) of the Hindu Marriage Act, 1955, for dissolution of marriage. On 26.3.2012, notice was ordered to be issued to the wife. As per report of the process server dated 20.4.2012, notice sent to the wife through court was returned unserved on the ground that she had gone to Bangalore. On 21.4.2012, notice was reissued to the wife by RPAD. It was returned unserved with an endorsement ‘refused’. The case was listed on 12.6.2012. Since notice issued to the appellant-wife was returned as refused, the Family Court held service of notice on the wife was as sufficient. Counsel for the petitioner prayed time for settlement. The case was adjourned to 5.7.2012, but the husband and his Counsel were absent and the case was adjourned to 30.7.2012 for settlement; on which date the husband was present and reported no settlement. The wife was placed exparte and the case was adjourned to 22.8.2012 for petitioner’s evidence. On 22.8.2012, the case was adjourned to 17.9.2012. As per the order sheet dated 17.9.2012, the husband and the wife were present. Sri B M Chougale filed vakalath for the wife and an application under Order IX Rule 7 of CPC was filed praying to set aside the exparte order. The said application was allowed and the exparte order was set aside and the case was adjourned to 27.9.2012 for conciliation. The parties were absent on 27.9.2012 and 5.11.2012. The case was adjourned to 27.11.2012, on which date the husband was present. The wife was absent. The Family Court adjourned the case to 3.1.2013 for petitioner’s (husband’s) evidence observing that she did not file objections. On 7.1.2013, the husband was present. He filed an affidavit evidence. He got himself examined as P.W1 and got marked Exs.P1 to P4. Cross-examination of P.W1 was taken as nil. The wife was absent. The Family Court adjourned the case to 3.1.2013 for petitioner’s (husband’s) evidence observing that she did not file objections. On 7.1.2013, the husband was present. He filed an affidavit evidence. He got himself examined as P.W1 and got marked Exs.P1 to P4. Cross-examination of P.W1 was taken as nil. Evidence on the side of wife was closed and adjourned the case to 21.1.2013 for arguments. On 28.1.2013, after hearing arguments of the Counsel for the husband, posted the case for judgment on 6.2.2013. Accordingly, on 6.2.2013, the Family Court allowed the Petition and dissolved the marriage of the parties solemnised on 10.7.2005. This is impugned in this Appeal by the wife on the following grounds: (i) that she had no knowledge about the case filed by her husband; (ii) that she never appeared before the Family Court; (iii) that she did not engage any Counsel in the case and file application for setting aside the exparte order; (iv) that the blank vakalath taken at the time of settlement from her for mutual divorce has been made use of; (v) that she came to know about the decree of dissolution of marriage only when the husband refused to fulfil the terms of an amicable settlement and on 6.4.2013, she engaged Vithoba Neelakant Savanth, Advocate, and obtained certified copy of the petition, entire order sheet, deposition of P.W1 and copy of the impugned judgment dated 6.2.2013; and (vi) that the husband played fraud on the Family Court and obtained the decree of dissolution of marriage. 3. Sri V.M. Sheelavant, learned counsel appearing for the appellant-wife, has urged the following additional grounds: (a) that when the police proceeded for arrest of father-in-law (of the appellant) and others in Cr.No.19/2012, they came forward for settlement and on 17.05.2012 the elders settled that husband has to give a flat measuring 800 to 850 sq. ft. at Belgaum, etc., and the same was reduced in writing; (b) that on 18.8.2012 in the presence of elders, the parties returned the ornaments etc., and the husband agreed to give Rs. 45 lakhs and flat and the wife consented for mutual divorce and gave a vakalath to the husband through one Sri Shripad Raikar, but the wife was kept in dark as to filing of divorce petition in M.C.No.86/2012 by the husband. 45 lakhs and flat and the wife consented for mutual divorce and gave a vakalath to the husband through one Sri Shripad Raikar, but the wife was kept in dark as to filing of divorce petition in M.C.No.86/2012 by the husband. (c) that the vakalath given by the wife was made use of by the husband in the Matrimonial Case No.86/2012 by giving it to his Counsels’ senior Sri B.M. Chougale, without her knowledge; (d) that the wife never appeared before the Family Court in M.C. No.86/2012 much less on 17.9.2012 as she was in Mangalore from 16.9.2012 to 20.9.2012 for Ganesha festival; and (e) that when the appellant-wife requested the husband through Sri Shripad Raikar for compliance of the terms of settlement, he denied saying that he has obtained decree of divorce and thereafter she came to know that her husband had obtained decree of divorce in MC No.86/2012 by impersonation and playing fraud on the Court, She filed a Private Complaint on 8.4.2014 by the wife in P.C. No.174/2014 on the file of JMFC III Court at Belgaum, against the husband and three others, for the offences punishable under Sections 120B, 193, 417, 419, 426, 465 r/w Section 34 of IPC but the same was rejected on 31.5.2014. He submits that the impugned judgment and decree may be set aside and the matter may be remitted to the Family Court, for disposal of the case in accordance with law. 4. Learned counsel for the husband submits that the grounds urged by learned counsel for the appellant-wife are baseless and contrary to the record in M.C.No.86/2012 and that after the appeal period was over, the husband married for the second time and there is no merit in the appeal. 5. In view of the arguments addressed by the learned Counsel for the parties, the only point that arises for our consideration is: “Whether the impugned judgment and decree call for our interference?” 6. Our answer to the above point is in the affirmative for the following reasons: We have perused records in M C No.86/2012 on the file of Family Court at Belgaum. The file has been indexed. Computer print out of the memorandum of divorce petition and the verifying affidavit of the husband filed in M C No.86/2012 are at page Nos.21 to 27. The file has been indexed. Computer print out of the memorandum of divorce petition and the verifying affidavit of the husband filed in M C No.86/2012 are at page Nos.21 to 27. At page Nos.31, 49, 51, 53, 57, 79, 81, 83, 85 and 89 of the case file, the following papers are available : (a) affidavit evidence of P.W1; (b) application filed under Section 13 of the Family Courts Act by the husband seeking permission to engage the Counsel, (c) vakalath filed by Ms. Beena Gururaj Achar for the husband, (d) vakalath filed by Sri B M Chougale and Sri Sunil Kakatkar, Advocates, for the wife; (e) process memo; (f) application dated 17.9.2012 filed under Order IX Rule 7 of CPC by the wife; (g) affidavit of the wife annexed to the application; (h) application filed by the wife under Section 13 of the Family Court Act seeking permission to engage Counsel to defend her (wife) in the Matrimonial Case; (i) list of documents filed by the Advocate for the husband (but signed by the Advocate for the wife); (j) index dated 26.3.2011 filed along with the divorce petition by the Advocate for the husband. If these papers were to be seen in juxtaposition with page No.21 (the memorandum of divorce petition) particularly the cause title, it reveals that the space, punctuation marks (like comma and colon) and underlining used while typing the name of the Court in the cause title are identical. For the purpose of immediate reference, the same is excerpted hereunder: IN THE COURT OF THE JUDGE, FAMILY COURT, BELGAUM, AT: BELGAUM There is no explanation as to how and where the papers were prepared. The above circumstances support the case of the appellant/wife. The grounds urged by the wife cannot be rejected. Hence, we hold that all the abovesaid case papers are the print out from one and the same computer software and the husband has made use of the blank vakalath signed by the wife for engaging senior Counsel of his Advocate and obtained a decree of dissolution of his marriage with the appellant and to deprive her rights. Thus, it indicates that the respondent/husband herein has played fraud etc., upon the Family Court so as to get a decree of divorce in his favour and against the wife and it is a fit case to initiate criminal proceedings against the respondent/husband. 7. Thus, it indicates that the respondent/husband herein has played fraud etc., upon the Family Court so as to get a decree of divorce in his favour and against the wife and it is a fit case to initiate criminal proceedings against the respondent/husband. 7. In view of the above, we pass the following order: Appeal is allowed and the impugned judgment dated 6.2.2013 and the decree made in MC No.86/2012 on the file of Family Court, at Belgaum, are set aside by imposing exemplary costs of Rs. 25,000/- on the respondent/husband. He shall deposit the same with the Family Court within two weeks from today. The case in M C No.86/2012 is remitted to the Family Court at Belgaum for disposal, in accordance with law. For the purpose of convenience and further proceedings, the appellant and the respondent are directed to appear before the Family Court, at Belgaum on 1.8.2014, without notice. The Family Court, at Belgaum is directed to lodge a complaint through its Sheristedar of the Court with the jurisdictional Police, against the respondent/husband for the offences punishable under Sections 193, 417, 419, 426, 464, 465 and 468 of IPC.