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2017 DIGILAW 1160 (KAR)

Krishnananda Surya v. Prameela

2017-08-22

B.A.PATIL, JAYANT PATEL

body2017
JUDGMENT : B.A. Patil, J. 1. Though the appeal is listed for admission, with the consent of the learned counsel on both sides, it is heard finally. 2. This appeal is filed by the appellant-husband assailing the order dated 25.1.2016 passed by the Principal Senior Civil Judge and JMFC., Bantwal, Dakshina Kannada. in MC.No.28/2015. 3. For the purpose of convenience, the parties are referred to as they referred to before the trial Court. 4. The brief facts are that the petitioner and respondent are husband and wife. Their marriage was solemnized on 15.10.2003 and out of the said wed-lock two children were born. Thereafter, the respondent started ill-treating the petitioner and therefore a case was filed in Criminal MC.No.970/2014 under the Domestic Violence Act, wherein petitioner contended that the respondent- husband used to come home by consuming alcohol and he used to threat her on one way or the other. After the marriage, he always imputed unchastity against her by saying that she is having illicit relationship with someone else and he attempted to kill her by using liquid petroleum gas. Petitioner further contended due to respondent's attitude, she found it difficult to lead life with him and ultimately she left matrimonial house and started residing in her parents' house and she is not ready to lead matrimonial life with the respondent as it is very dangerous to her life and as such she prayed for allowing the petition for dissolution of their marriage. 5. Though notice was served on the respondent- husband on 11.12.2015, he remained absent. Thereafter the petitioner-wife filed an application for advancement of the case, and therefore the case which was adjourned to 28.1.2016 was preponed on 6.1.2015 at 3.00 p.m. on which day, the petitioner was examined and she marked the documents as per Exs.P1 to P10. The learned trial Judge after hearing the arguments of the petitioner-wife, posted the case for orders on 25.1.2016, on which day the impugned order came to be passed. As against such order, the respondent-husband is before this Court in this appeal. 6. We heard Sri P.P. Hegde, learned counsel appearing for the appellant and Sri Prasanna, learned counsel appearing on behalf of the respondent and perused the papers as well as the original records received from the trial Court. 7. As against such order, the respondent-husband is before this Court in this appeal. 6. We heard Sri P.P. Hegde, learned counsel appearing for the appellant and Sri Prasanna, learned counsel appearing on behalf of the respondent and perused the papers as well as the original records received from the trial Court. 7. Learned counsel for the appellant contended that though the notice was served on the respondent, he remained absent on 11.12.2015 as he was seriously ill and was unable to attend the Court. He enquired and came to know that the case was posted to 28.1.2016. On that day, he wanted to engage a counsel to appear on behalf of him and to contest the petition. However, the learned trial Judge did not give him an opportunity to contest the case thereby did not observe the principles of natural justice and passed the impugned order by preponing the case without any just cause and without notice to the respondent. He further contended that when the respondent came to the Court on 27.1.2016, at that time, he learnt that the case was already decided on 25.1.2016. Immediately after obtaining the certified copy of the impugned order, the respondent-husband has filed the appeal. It is his further contention that the learned trial Judge has not applied his mind judiciously while passing the impugned order. Petitioner has not made out any case for dissolution of marriage under Section 13A of the Hindu Marriage Act. On these grounds, he prayed for allowing the appeal by setting aside the impugned order. 8. Whereas, the learned counsel appearing on behalf of the wife-respondent herein supports the impugned order contending that when the notice was served on the appellant-husband he did not appear before the Court on 11.12.2015 and therefore the case was adjourned to 28.1.2015, but due to urgency, an application was moved for advancement of the case and after considering the fact that the respondent-husband has remained absent, the learned trial Judge recorded the evidence of the petitioner-wife and after hearing the learned counsel appearing on behalf of the petitioner-wife, the impugned order came to be passed. However, the learned counsel for the respondent herein has fairly submitted that by fixing a time stipulation, the matter may be remanded back to the trial Court for fresh disposal in accordance with law. 9. However, the learned counsel for the respondent herein has fairly submitted that by fixing a time stipulation, the matter may be remanded back to the trial Court for fresh disposal in accordance with law. 9. We have carefully gone through the submissions made by the learned counsel appearing for the parties. On perusal of the entire records it indicates that notice was served on the respondent-husband fixing the date on 11.12.2015 on which day he did not put his appearance and therefore the case was adjourned to 28.1.2015. But as the learned counsel appearing for the petitioner-wife has filed an application for advancement of the case, the matter was posted on 6.1.2015 at 3.00 p.m. On that day, the learned trial Judge has recorded the evidence of the petitioner and got marked Exs.P1 to P10. On the very day itself, he heard the arguments and posted the case for orders on 25.1.2016 and on the said date the impugned order came to be passed. 10. The records reveal that the learned trial Judge before advancement of the case from 28.1.2015 to 6.1.2015 has not asked the petitioner to serve a copy on the respondent-husband and no opportunity has been given to the respondent-husband to contest his case. Be that as it may, the learned trial Judge without application of his mind and without assigning any cogent and acceptable reasons has advanced the case, recorded the evidence, heard the arguments hurriedly and has disposed of the case before the date given earlier, i.e., before 28.1.2016. On going through the records, it clearly indicates that the respondent has not been given any opportunity to contest his case. It is also clear that certified copy of the impugned order was applied by the appellant on 27.1.2016 and thereafter appeal came to be filed. Even he has also produced the medical certificate issued by Jayantha Clinic wherein it is stated that he was suffering from severe shoulder pain from 10.10.2015 to 30.10.2015 and 13.12.2015 to 12.1.2016. When that being the case, the matter which is disposed of by the learned trial Judge appears to be without following the principles of natural justice. Under the circumstances, we feel it just and proper to give opportunity to the respondent-husband to contest the matter. Accordingly, appeal is allowed. When that being the case, the matter which is disposed of by the learned trial Judge appears to be without following the principles of natural justice. Under the circumstances, we feel it just and proper to give opportunity to the respondent-husband to contest the matter. Accordingly, appeal is allowed. The matter is remitted to the jurisdictional Court with a direction to dispose of the same afresh after giving an opportunity to the parties, in accordance with law. However, as the sufficient time has lapsed, in order to safeguard the interest of the parties, we direct both the parties to appear before the trial Court on 12th of September, 2017 without awaiting further notice from the trial Court.