Allowed

Smt R Mahalakshmi v. Shri G Manjunath

Karnataka HC21 Oct 2019MFA/342/2016

Case brief

AI extract

What is this about?

The High Court allowed an appeal filed by a wife against a divorce decree granted ex parte by the Family Court. The Court set aside the lower court's order, holding that the appellant was erroneously placed ex parte due to defective service of notice, violating principles of natural justice.

What did the court decide?

Impugned judgment and decree of divorce set aside; matter remanded to Family Court to allow appellant to file statement of objections, cross-examine witnesses, and present evidence.

Smt R Mahalakshmi Vs Shri G Manjunath — Matrimonial and Divorce | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF OCTOBER, 2019

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PRESENT

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THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

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AND

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THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ

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M.F.A. NO.342 OF 2016 (MC)

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BETWEEN:

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Smt.R.Mahalakshmi w/o.Shri G.Manjunath D/o.Rangaiah Aged about 30 years Now r/a.Bettahalli Village Mandigere Post Kasaba Hobli Nelamangala Taluk Pin code 562123 Bengaluru Rural District (By Sri: Prakash T.Hebbar, Advocate)

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.. APPELLANT

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AND:

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Shri G.Manjunath s/o.late Gopalaiah Aged about 37 years r/a.Bannikuppe Village Hebburu Hobli Tumakuru Taluk & District ... RESPONDENT

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(By Sri. B.S.Nataraja, Advocate of B.S.N. & Associates)

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This MFA is filed u/s.19(1) of the Family Courts Act, 1984 r/w. Sec.28 of the Hindu Marriage Act, 1955 against the judgment and decree dated 17.10.2015 passed in M.C.No.490/2013 on the file of the Principal Judge, Family Court, Tumakuru, allowing the petition filed under section 13(1)(i-a) of the Hindu Marriage Act.

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This MFA coming on for Admission this day, NAGARATHNA J., delivered the following:

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J U D G M E N T

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Though this appeal is listed for admission, with the

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consent of the learned counsel on both sides, it is heard finally.

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The appellant is the wife while the respondent

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is the husband. The respondent/husband had filed M.C.No.490/2013 before the learned Principal Judge, Family Court at Tumakuru, seeking dissolution of marriage with the appellant/wife under section 13(1)(ia) of the Hindu Marriage Act, 1955, hereinafter referred to as the “Act” for the sake of brevity. The Family Court at Tumakuru issued notice to the appellant herein/respondent

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before the Family Court through registered post acknowledgment due. The said notice was not served on her as she was not residing in the said address. Thereafter, the respondent herein was permitted to take substituted service by way of newspaper publication. Inspite of the same, she did not appear before the Court. Hence, the appellant herein was placed ex parte . The respondent herein let in his evidence as PW.1 and that of another witness as PW.2 and got marked five documents as Exhibits P1 to P5. Since the appellant herein did not appear before the Family Court and she was placed ex parte , she did not cross-examine PW.1 or PW.2. She also did not let in her evidence in the matter. She has not contested the case by filing her statement of objections as she was placed ex parte . The arguments were heard by the Family Court. The Family Court raised the following points for its consideration:-

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(1) Whether the petitioner is entitled for

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dissolution of the marriage as sought?

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(2) What order?

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The Family Court on the basis of the evidence on record, answered the same in the affirmative and allowed M.C.No.490/2013 filed by the respondent herein and dissolved the marriage between the parties by grant of a decree of divorce. Being aggrieved by the judgment of the Family Court dated 17.10.2015, the wife has preferred this appeal.

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We have heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.

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Appellant’s counsel contended that the impugned judgment and decree is an ex parte one. The Family Court did not ensure that notice was served to the appellant herein. Though process was taken in the usual course through registered post acknowledgment due, the appellant herein was not served at the address stated therein as she did not reside there. Therefore, the respondent herein ought to have furnished the correct address of the appellant herein and thereafter, fresh notice

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had to be issued and served. But the said step was not taken before the Family Court. Instead the Family Court permitted taking of steps by way of substituted service through newspaper publication which was wholly incorrect as the appellant herein was not at all aware of the newspaper publication also. Consequently, she was placed ex parte which was not correct. The appellant did not file her statement of objections to M.C.No.490/2013 and did not cross-examine PW.1 and PW.2 and neither did she let in any evidence in the matter. The impugned judgment and decree being an uncontested one, is in violation of the principles of natural justice. He, therefore, submitted that the impugned judgment be set-aside and an opportunity may be given to the appellant to file her statement of objections to M.C.No.490/2013 and permit the appellant to cross-examine respondent’s witnesses and to let in her evidence and the Family Court may be directed to dispose of the said proceedings in accordance with law.

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Per contra, learned counsel for the respondent

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supported the judgment and decree of the Family court. He submitted that the appellant herein was rightly placed ex parte as she did not respond to the notice issued by the Family Court. He submitted that the respondent cannot now be put to prejudice and disadvantage and once again the matter cannot be remanded as the judgment and decree of the Family Court is in accordance with law. He submitted that there is no merit in the appeal and therefore, the same may be dismissed.

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Having heard learned counsel for the

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respective parties, the following points would arise for our consideration:-

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(1) Whether the impugned judgment and decree of the Principal Judge, Family Court at Tumakuru dated 17.10.2015 passed in M.C.No.490/2013 calls for any interference in this appeal?

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(2) What Order?

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The fact that the respondent herein filed M.C.No.490/2013 under section 13(1)(ia) of the Act seeking dissolution of the marriage with the appellant herein which was solemnized on 29.01.2012 is not in dispute. However, the controversy is, as to, whether, the appellant herein was indeed served with the notice of the said petition by the Family Court.

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It is noted from paragraph No.4 of the impugned judgment that, although notice was issued to the appellant herein through registered post acknowledgment due (RPAD) in the usual course, the said notice was not served on her. This was because she was

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not residing in the said address. In the circumstances, the respondent ought to have furnished the correct address of the appellant herein so that steps could have been taken by the Family Court to serve the appellant herein through registered post acknowledgment due, instead the Family Court permitted the respondent herein to serve the appellant herein by way of substituted service, through

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newspaper publication, instead of complying with the service of notice in the usual course through registered post acknowledgment due as per procedure. We find that the Family Court was not right in permitting the respondent herein to take out notice to the appellant through newspaper publication without ensuring as to whether the appellant was served in the usual course or not at her correct address.

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We further find that the address furnished by the respondent herein in M.C.No.490/2013 and the address furnished by the appellant herein in the Memorandum of Appeal before this court are one and the

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same. It is not known as to on what basis the Family Court concluded that the appellant herein was not residing in the said address when she was sought to be served through registered post acknowledgment due at that address. In the circumstances, we hold that the appellant herein was erroneously placed ex parte by the Family Court and consequently, it is noted that the appellant

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herein has not participated in the proceedings initiated by the respondent herein before the Family Court. Thus, the impugned judgment and decree of the Family Court is in total violation of the principles of natural justice. On that short ground alone, the same is liable to be set aside.

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Accordingly, the appeal is allowed in the following terms:

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(i) The impugned judgment and decree dated 17.10.2015 passed by the Principal Judge, Family Court at Tumakuru, in M.C.No.490/2013 is set-aside. The matter is remanded to the lower Court. M.C.No.490/2013 is restored on the file of the concerned Family Court.

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(ii) The matter is remanded to the concerned Family Court so as to enable the appellant herein to file her statement of objections, cross-examine the respondent’s witnesses and to let in her evidence, if any. The Family Court, Tumakuru to permit the appellant to take the aforesaid steps and thereafter, to dispose of M.C.No.490/2013 in accordance with law.

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(iii) Since the parties are represented by their respective counsel, they shall appear before the Family Court on 02.12.2019, without expecting any separate notices from the concerned Family court.

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(iv) The appellant to file her statement of objections on 02.12.2019 or on any other date to be specified by the concerned Family Court.

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(v) On appearance of the parties, the Family Court to dispose of the case within a period of one year from 02.12.2019 in accordance with law. Both the parties to co-operate with the Family Court for expeditious disposal of the case.

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(vi) Parties to bear their respective costs.

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In view of the disposal of the appeal, I.A.No.1/2016

stands disposed of.

Sd/JUDGE

Sd/JUDGE

Bss.

Smt R Mahalakshmi v. Shri G Manjunath

Case brief

What is this about?

What did the court decide?

Smt R Mahalakshmi v. Shri G Manjunath

Case brief

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What did the court decide?

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