Research › Search › Judgment

Karnataka High Court · body

2016 DIGILAW 25 (KAR)

Rajeshwari S. Gavadi v. Maruthi S. Gavadi

2016-01-07

N.K.PATIL, S.SUJATHA

body2016
JUDGMENT : N.K. Patil, J. 1. This appeal by the appellant/wife is directed against the Judgment and Decree dated 10/01/2011, passed in M.C. No. 93/2010, by the I Additional Senior Civil Judge & CJM, Mangalore, wherein, petition filed by the respondent/husband under Section 13(1)(ia) and (1)(ib) (but wrongly mentioned as 13(ia) and (ib)) of the Hindu Marriage Act, against appellant-wife, seeking a decree of divorce dissolving the marriage solemnized between them on 20.5.2009 at Sri Kavoor Kamakshi Sabhagruha, Kumta, has been allowed, dissolving the marriage between appellant and respondent and dismissing the petition filed under Section 13(ib) of Hindu Marriage Act. 2. The brief facts of the case are as under: It is the case of the respondent/husband that, his marriage with appellant/wife was solemnized on 20.5.2009 at Sri Kavoor Kamaskhi Sabhagruha, Kumta. The appellant/wife is the maternal uncle's daughter of the respondent/husband. She is well educated, diploma holder with computer knowledge and a permanent employee working at M.S. Vasudeva College of Education, Boloor, Mangalore. It is the further case of the respondent/husband that, after the marriage she started behaving differently and is not at all talking with him in a friendly manner and she used to abuse him in bad language whenever he questions the strange attitude and she was always insulting him by calling him as 'Hijjida'. It is the further case of the respondent/husband that he was working in a Private Company, he has to work in shifts i.e. some times in night shifts and when he comes home after finishing his night shift and go to sleep, she used to harass him by keeping TV volume loudly and sometimes applying the FM radio loudly. She was not cooking any food and make him to eat the food from the hotel or to bring parcel. It is the further case of the respondent/husband that, she was pregnant, but without his consent and knowledge she got aborted the same by taking some tablets and when he came to know her illegal act he underwent severe mental agony and stress and when the same was questioned by him, she has answered rudely and stated that she will give complaint for dowry harassment by lodging a false police complaint. It is the further case of the respondent/husband that he is leading the life with her with fear and tolerated the misdeeds with a fond hope that on one or other day she may change, but there is no hope left to him and all his efforts to live together happily went in vain. Therefore, he has filed the petition for divorce and prayed to grant the same. 3. Upon service of notice, appellant/wife appeared through her counsel, but has not chosen to file any objections and therefore, court has observed that she has not filed any objection. 4. In order to prove his case, respondent/husband has examined himself as PW 1 and got marked two documents as per Exs. P1 and P2 and appellant/wife has not led any evidence or got marked any documents. 5. The Trial Court, on the basis of the pleadings of the respondent/husband has framed necessary points for its consideration and after due deliberation and after considering the material on record, has answered Point No. 1 in the affirmative and Point No. 2 in the negative and as per final order allowed the petition filed under Section 13(1)(ia) of Hindu Marriage Act, dissolving the marriage between the respondent/husband and appellant/wife solemnized on 20.5.2009 at Sri Kavoor Kamakshi Sabhagruha, Kumta and dismissed the petition filed under Section 13(1)(ib) of the Hindu Marriage Act. Being aggrieved by the said judgment and decree passed by the Trial Court, the appellant/wife has presented this appeal. 6. The submission of the learned counsel appearing for the appellant/wife, at the outset is that, due to non participation of the appellant effectively when the matter is pending adjudication before the Trial Court, the Trial Court has proceeded with the matter on the basis of the averments made in the petition by the respondent/husband and allowed the same and therefore, it is liable to be set aside. To substantiate the said submission, he submitted that, unfortunately, the counsel who represented the appellant/wife before the Trial Court met with an accident and he has not filed any objection and participated in the proceedings nor informed the same to her and therefore, an opportunity may be given to her to file objections, lead evidence and to cross examine the respondent/husband. Therefore, he submitted that, appropriate direction may be issued to the Trial Court to reconsider the matter afresh in accordance with law. 7. Therefore, he submitted that, appropriate direction may be issued to the Trial Court to reconsider the matter afresh in accordance with law. 7. As against this, learned counsel Sri H.C. Betsur, at the outset tried to substantiate that the impugned judgment and decree passed by the Trial court is just and proper and after due consideration of the entire material available on record, on the ground that inspite of giving sufficient opportunity to the appellant/wife though she has represented through her counsel she has not chosen to file objection and cross examine the PW 1 nor denied the averments made in the petition filed for decree of divorce. Further he submits that the reasoning given by the Trial Court in paras 8 and 9 of its judgment is in consonance with the material on record and therefore, interference by this court is uncalled for. Further, learned counsel appearing for respondent/husband submitted that, after disposal of the petition and after completion of appeal period, respondent/husband got married second time and out of the said wedlock, he has got one child and therefore, the prayer sought in this appeal does not survive for consideration. Further, learned counsel appearing for respondent/husband has placed reliance on the judgment of the Apex Court reported in (2006) 13 Supreme Court Cases 272 (Sujata Uday Patil Vs. Uday Madhukar Pati) and on the judgment reported in AIR 2004 Orissa 75 (Sabitri Senapati Vs. Judge, Family Court, Cuttack and another) and submitted that, in view of the law laid down in those cases, no useful purpose will be served in remanding the matter by setting aside the judgment and decree passed by the Trial Court as appellant cannot live with husband as he has remarried after expiry of limitation period for filing the appeal and has a child from the second wife. Therefore, he submitted that, the impugned judgment and decree passed by the Trial Court is just and reasonable and it does not call for interference. 8. After considering the submissions made by learned counsel appearing for both the parties and after careful perusal of the impugned judgment and decree passed by the Trial Court, it is not in dispute that, the marriage between the parties was solemnized on 20.5.2009 and they lived happily for some time. 8. After considering the submissions made by learned counsel appearing for both the parties and after careful perusal of the impugned judgment and decree passed by the Trial Court, it is not in dispute that, the marriage between the parties was solemnized on 20.5.2009 and they lived happily for some time. Due to misunderstanding between them since the respondent/husband is working in a private company and appellant/wife is also working and now she is working as Probationary Surveyor in Survey department and their working hours are different and husband used to work in shifts, their relationship was stained. It is also not in dispute that, during the pendency of the petition, appellant/wife has engaged the service of a counsel and as he has met with an accident, he could not file objection or participated in the proceedings. The Trial court, based on the statements made by the respondent/husband in the petition and the oral and documentary evidence produced by him, has allowed the petition filed under Section 13(1)(ia) by granting decree of divorce dissolving the marriage held between the parties and dismissed the petition filed under Section 13(1)(ib). It is significant to note as rightly pointed out by the learned counsel appearing for the appellant/wife that, if an opportunity is given to her, she will file objections to the petition filed by the respondent/husband, lead oral and documentary evidence and also cross-examine the respondent/husband and then the Trial Court can decide the matter in accordance with law after affording reasonable opportunity of hearing to both the parties. We find some force in the said submission. 9. So far as the reliance placed by the learned counsel appearing for respondent/husband as stated supra is concerned, there is no dispute or quarrel with regard to the law laid down by the Apex Court and Orissa High Court in the said judgments. But the facts and circumstances of those cases are not applicable to the facts and circumstances of the case in hand, for the reason that, it emerges from the record available on file that the judgment has been passed when there is no oral or documentary evidence on behalf of the appellant/wife. Now she is working in Survey department and she was not aware about the legal implications for not participating in the proceedings as she has engaged the services of the counsel. Now she is working in Survey department and she was not aware about the legal implications for not participating in the proceedings as she has engaged the services of the counsel. But unfortunately, her counsel met with an accident and there was no communication between them and due to communication gap between her and her counsel she could not take necessary steps to substantiate her case before the Trial Court. Therefore, we are of the view that, the reliance placed by the learned counsel appearing for respondent/husband is not at all applicable to the facts and circumstances of the case in hand. 10. Taking all these factors into consideration and having regard to the peculiar facts and circumstances of the case as stated above, we are of the considered view that it is a fit case for reconsideration afresh by the Trial Court. Therefore, without expressing any opinion on the merits and demerits of this case, to meet the ends of justice and to safeguard the interest of both the parties, it would suffice for this Court to issue appropriate directions to both the parties. 11. For the foregoing reasons, the appeal filed by the appellant/wife is allowed. The impugned Judgment and Decree dated 10/01/2011, passed in M.C. No. 93/2010, by the I Additional Senior Civil Judge & CJM, Mangalore, is hereby set aside and the matter stands remitted back to the Trial Court, to reconsider the same afresh and to pass appropriate orders in accordance with law, after affording reasonable opportunity of hearing to both the parties and dispose of the same as expeditiously as possible. The appellant/wife is permitted to file objections to the petition filed by the respondent/husband within four weeks from the date of receipt of a copy of this judgment. Further, both the parties are permitted to lead additional or and documentary evidence by way of filing applications if so advised or if need arises. The appellant and respondent are directed to appear before the jurisdictional Trial Court, personally or through their counsel on 3rd February 2016 at 11.00 a.m., to collect next date of hearing, without waiting for notice. Ordered accordingly.