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2019 DIGILAW 1133 (KAR)

H. Manjunath v. Chandana Manjunath

2019-06-06

B.V.NAGARATHNA, K.NATARAJAN

body2019
JUDGMENT : K. Nagarathna, J. Though this appeal is listed for admission, with the consent of appellant who has appeared in person and learned counsel for respondent, it is heard finally. 2. The appellant is the husband while the respondent is the wife. The appellant filed M.C.No.574/2010 on the file of V Additional Principal Judge, Family Court at Bengaluru under Section 13(1)(ia) of Hindu Marriage Act, 1955 (hereinafter referred to as, the Act, for the sake of brevity) against his wife seeking dissolution of marriage, solemnized on 10.03.2008. 3. When the said proceeding was under consideration, on 16.02.2018, the respondent filed I.A.Nos.109 and 110 seeking to file the counter claim under Section 13(1)(ia) of the Act against the appellant/husband. 4. By the judgment and decree dated 28.02.2018, the Family Court has dismissed the petition filed by the husband/appellant herein by allowing the counter claim filed by the respondent/wife. As a result, a decree of divorce has been granted to the respondent/wife, at the instance of the respondent/wife, while dismissing the petition filed by the husband. Certain other directions have also been issued in the said judgment. Being aggrieved, the husband has preferred this appeal. 5. We have heard the appellant in person and learned counsel for respondent and perused the material on record as well as the original record. 6. The appellant has made a twofold submission: firstly, he contended that his petition filed under Section 13(1)(ia) of the Act has been dismissed without him letting in any evidence before the Family Court. There has also been no evidence let in by the respondent in his proceeding. Secondly, he submitted that his petition was pending since the year 2010. But on 16.02.2018, when he was not present before the Court and was away from Bengaluru for attending to professional work two applications, namely, I.A.Nos.109 and 110 were filed raising a counter claim by the wife under Section 13(1)(ia) read with Section 23-A of the Act seeking a decree of divorce against the husband. He contended that the said applications were not served on him. No statement of objections were filed to the same by him. The evidence of the respondent was let in on the same and judgment on the counter claim was pronounced also on 28.02.2018 within a period of 12 days from the date of filing of the counter claim by allowing the same. No statement of objections were filed to the same by him. The evidence of the respondent was let in on the same and judgment on the counter claim was pronounced also on 28.02.2018 within a period of 12 days from the date of filing of the counter claim by allowing the same. In other words appellant contended that there has been gross violation of the principles of natural justice in the matter and therefore, the matter may be remanded to the trial Court for a fresh adjudication. In support of his submission he has drawn our attention to the order sheet maintained by the concerned Family Court. 7. Per contra, learned counsel for the respondent Sri. H.V. Praveen Gowda, supported the judgment and decree passed by the Family Court and contended that the respondent cannot be blamed if the appellant was not present before the Family Court on the day the counter claim was filed or if no statement of objections are filed to the counter claim or if he does not cross examine the respondent on the counter claim nor let him any evidence on the same. He contended that the Family Court was justified in disposing of the counter claim in the manner that it has been done and there is no merit in having this appeal. 8. Having heard learned counsel for the respective parties and on perusal of the material on record as well as the original record, the following points would arise for our consideration: (i) Whether the Family Court was right in disposing of the proceeding in the manner it has done so? (ii) What order? 9. It is not in dispute that the appellant had filed this petition seeking a decree of divorce under Section 13(1)(ia) of the Act. The said proceeding was filed in the year 2010. It is also not in dispute that as many as over hundred applications were filed in the said proceeding. Interim applications were regularly filed in the said proceeding and evidence had not yet commenced until 16.02.2018 on which date the counter claim was filed by the respondent also seeking a decree of divorce against her husband under Section 13(1)(ia) read with Section 23-A of the Act. 10. We have perused the order sheet of the Family Court from 16.02.2018 onwards, the same reads as under: 16.02.2018 ORDER Petitioner absent. Respondent present. 10. We have perused the order sheet of the Family Court from 16.02.2018 onwards, the same reads as under: 16.02.2018 ORDER Petitioner absent. Respondent present. The advocate for respondent filed I.A.No.109 u/Order 8 rule 6 r/w Sec. 151 of CPC to permit the respondent to file along with the counter claim. The advocate for respondent also files I.A.No.110 u/Order 15 r/w Sec. 151 of CPC to pass a judgment and decree in accordance with law as the respondent sought for decree for divorce in her counter claim. For Objection to I.A.No.109 and 110 and for petitioner s evidence if any 19.02.2018. Sd/- V Addl. Prl. Judge, Family Court, Bengaluru. 19.02.2018 ORDER Petitioner absent. Respondent present. The advocate for respondent present. Call again. Sd/- V Addl. Prl. Judge, Family Court, Bengaluru. Again called at 1.55 p.m. Petitioner absent. Respondent present. The advocate for respondent present. As petitioner absent, Objection to I.A.No.109 and 110 taken as not filed. So, for hearing on 109 and 110 and again for petitioner s evidence as a last chance 21.02.2018. Sd/- V Addl. Prl. Judge, Family Court, Bengaluru. 21.02.2018 ORDER Petitioner absent. Respondent present. So Objection to I.A.No.109 taken as not filed. Heard on I.A.No.109. I.A.No.109 is allowed for the reasons set out in the annexed affidavit of the respondent. Counter claim of the respondent taken on record. For objections to counter claim if any and for petitioner s evidence by 22.02.2018. Sd/- V Addl. Prl. Judge, Family Court Bengaluru. 22.02.2018. ORDER Petitioner absent. Respondent present. Advocate for respondent present. Call again at 3.00 p.m. Sd/- V Addl. Prl. Judge, Family Court, Bengaluru. Again called out at 3.00 pm. Petitioner absent. Respondent present. The advocate for respondent also present. As petitioner/party in person absent, objection to the counter claim taken as not filed. As the petitioner has not been appearing before the Court, petitioner s evidence also taken as nill and closed and posted for respondent s evidence as there is counter claim by the respondent. For Respondent s evidence by 24.02.2018. Sd/- V Addl. Prl. Judge, Family Court, Bengaluru. 24.02.2018 ORDER Petitioner absent. Respondent present. The advocate for respondent files iano.111 to condone the delay in production of documents along with the list of documents. Perused. Heard. I.A.No.111 is allowed for the reasons set out in the annexed affidavit of the respondent. List of document taken on record. Sd/- V Addl. Prl. Judge, Family Court, Bengaluru. 24.02.2018 ORDER Petitioner absent. Respondent present. The advocate for respondent files iano.111 to condone the delay in production of documents along with the list of documents. Perused. Heard. I.A.No.111 is allowed for the reasons set out in the annexed affidavit of the respondent. List of document taken on record. Respondent present and files her affidavit in lieu of her chief examination as RW1 and deposed about her documents Ex.R1 to Ex.R29 got marked. As petitioner is absent, cross of RW1 taken as nill and closed and posted for arguments on merits by 26.02.2018. Sd/- V Addl. Prl. Judge, Family Court, Bengaluru. 26.02.2018 ORDER Petitioner absent. Respondent present. Heard the arguments of respondents side. Now for judgment by 28.02.2018. Sd/- V Addl. Prl. Judge, Family Court, Bengaluru. 11. On perusal of the same, it is noted that the respondent herein had filed I.A.No.109 under Order VIII Rule 6 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) to permit her to file the counter claim. I.A.No.110 was filed under Order XV read with Section 151 of CPC to pass a judgment and decree in accordance with law as the respondent sought for a decree of divorce in her counter claim. The Family Court directed that objection shall be filed to the same and for the petitioner s evidence i.e., (appellant herein) evidence on 19.02.2018. On 19.02.2018, the Family Court has noted that the petitioner i.e., appellant herein was absent and no statement of objections had been filed and posted the matter for hearing on I.A.Nos.109 and 110 and for petitioner s evidence on 21.02.2018 as a last chance. On 21.02.2018, the Family Court has noted that as objections had not been filed to I.A.No.109 and it was taken as not filed and the application was allowed and the counter claim of the respondent was taken on record and for objections on the counter claim, the matter was posted for the next date and for evidence of the petitioner i.e., on 22.02.2018. On 22.02.2018, the matter was called out in the morning session and again at 3.00 p.m. and on that day, the trial Court noted that the petitioner i.e., appellant herein was absent. Respondent s advocate was present and that objection to the counter claim was not filed. On 22.02.2018, the matter was called out in the morning session and again at 3.00 p.m. and on that day, the trial Court noted that the petitioner i.e., appellant herein was absent. Respondent s advocate was present and that objection to the counter claim was not filed. As the petitioner had not been appearing before the Court, his evidence was taken as nil and his case was closed and posted for respondent s evidence as there was counter claim by the respondent to 24.02.2018. On 24.02.2018, I.A.No.111 seeking condonation of delay in production of documents was allowed and respondent s affidavit in examination-in-chief as RW-1 was taken, 29 documents were marked and petitioner s cross-examination of RW-1 was taken as nil and the matter was posted for arguments. On 26.02.2018, the arguments are heard and matter was posted for judgment on 28.02.2018, the same was delivered on the said date. 12. We have extracted the order sheet and we have highlighted the important stages in the matter. The same would clearly speak for itself. However, we would like to emphasize that after nearly eight years counter claim was filed by the respondent before the Family Court. The Family Court has not bothered to ascertain as to whether a copy of the counter claim was served on the petitioner i.e., appellant herein. The Family Court has not bothered to ascertain as to whether the counter claim was maintainable and as to whether the appellant herein had any opportunity to respond to the same. On two occasions, several stages of the proceeding in the counter claim have been clubbed and ultimately the counter claim was allowed and simultaneously, the proceeding filed by the petitioner i.e., the appellant herein was dismissed without recording any evidence of the appellant i.e., petitioner before the trial Court. It may be that justice delayed is justice denied, but there is also another salutary principle, which is justice hurried is justice buried. This is clearly a case of justice been hurried and buried which is evident from what has transpired before the Family Court. We do not know as to what was the reason for the undue haste or as why the Family court disposed of the counter claim in twelve days time. No doubt parties may be under a lot of stress and tension when proceedings are filed before the Family Court as compared to other Courts. We do not know as to what was the reason for the undue haste or as why the Family court disposed of the counter claim in twelve days time. No doubt parties may be under a lot of stress and tension when proceedings are filed before the Family Court as compared to other Courts. But that is not a reason for relief being granted to a party. 13. In the circumstances, the impugned judgment and decree of the trial Court is set aside. The matter is remanded to the concerned Family Court for re-consideration in accordance with law. Since the appellant is appearing in person and respondent is represented by learned counsel, they are directed to appear before the trial Court on 27.06.2019 without expecting any separate notices from the said Court. On the said date the Family Court shall ensure that a copy of applications i.e., I.A.Nos.109 and 110 are handed over to the appellant herein so as to enable him to file objections to I.A.Nos.109 and 110 and also statement of objections to the counter claim and to dispose the proceeding in accordance with law. 14. As the matter is of the year 2010, the trial Court shall dispose of the same expeditiously and in accordance with law. It is needless to observe that for an expeditious disposal of the matter, the co-operation of the parties is of utmost importance. 15. In view of the disposal of the appeal, I.A.No.1/2019 is ordered to be filed reserving liberty to the appellant to seek appropriate remedy before the appropriate forum. 16. At this stage, learned counsel for the respondent submits that the school fees of the minor child for the Academic year 2019-2020 has not been paid by the appellant. Appellant submits that on the earlier occasion he has paid the same. In the circumstances, he is directed to pay school fees and other incidental charges of the minor daughter for the academic year 2019-2020 by reimbursing the respondent in that regard as the respondent is said to have already tendered the school fees and other expenses of the minor child. 17. Learned counsel for the respondent further submits that during the pendency of the matter before the Family Court no interim maintenance was ordered. 17. Learned counsel for the respondent further submits that during the pendency of the matter before the Family Court no interim maintenance was ordered. However, before this Court, pending consideration of this appeal, interim maintenance of Rs.10,000/- to be paid to the respondent with effect from 01.03.2019 has been ordered. He submits that no maintenance to the child has been awarded by this Court. By way of response, appellant submits that there is already an order to pay a sum of Rs.3,000/- per month to the child in the appellate proceeding concerning domestic violence. 18. In the circumstances, by way of an interim arrangement, pending disposal of the matter before the Family Court, the appellant is directed to pay to the respondent and to the minor child a sum of Rs.15,000/- per month. 19. At this stage, appellant submits that 17.06.2019 is the child s birthday and that interim custody of the child may be handed over to him on 16.06.2019, so that his family members could celebrate child s birthday on that day. Learned counsel for the respondent submits that on 17.06.2019 the birthday celebration of the minor daughter shall be celebrated. 20. In the circumstances, appellant shall take the child from the respondent s house at 10.00 a.m. and drop the child back to the respondent s house by 7.00 p.m. on 16.06.2019 i.e., Sunday.