Remanded

Mrs Shwetha Hande v. Dr Harish Holla

Karnataka HC17 Oct 2019MFA/9883/2018

Case brief

AI extract

What is this about?

In an appeal under Section 28(1) of the Hindu Marriage Act against a decree of dissolution, the High Court set aside the impugned judgment and remanded the matter to the trial court to grant the appellant an opportunity to cross-examine witnesses and adduce evidence.

What did the court decide?

The appealed judgment and decree are set aside and the matter is remanded to the trial court for a fresh hearing with an opportunity given to the appellant to adduce evidence after cross-examination o

Mrs Shwetha Hande Vs Dr Harish Holla — Matrimonial and Divorce | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^th 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.9883 OF 2018 (MC)

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BETWEEN:

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MRS. SHWETHA HANDE D/O KOLLUR SADASHIV HANDE W/O MR. HARISH HOLLA AGED ABOUT 34 YEARS R/AT KASHIJEDDU (KASHITEERTHA) RETIRED TEACHER, KOLLUR KUNDAPURA TALUK-576201 UDUPI DISTRICT ... APPELLANT (BY SRI. NAGARAJA HEGDE, ADVOCATE)

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AND:

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DR. HARISH HOLLA S/O VENKATRAMANA HOLLA AGED ABOUT 41 YEARS R/AT KANCHENGUDU POST: GUJJADI, TRASI KUNDAPURA TALUK-576247 UDUPI DISTRICT ... RESPONDENT (BY SRI. K. CHANDRANATH ARIGA, ADVOCATE)

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THIS APPEAL IS FILED UNDER SECTION 28(1) OF HINDU MARRIAGE ACT, 1955, AGAINST THE JUDGMENT AND DECREE DATED 23.10.2018, PASSED IN MC NO.129 OF 2016, ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(ia) AND (ib) OF THE HINDU MARRIAGE ACT, 1955.

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THIS APPEAL 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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The appellant is the wife while the respondent is the husband. Being aggrieved by the judgment and decree passed by the Senior Civil Judge, Kundapura dated 23^rd October 2018 in M.C.No.129/2016, the appellant has preferred this appeal.

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Briefly stated the facts are that the respondent-husband had preferred M.C.No.129/2016 under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’ for brevity) before the trial court seeking dissolution of the marriage solemnized on 15.07.2013 by a decree of divorce. In response to the notice issued by the trial Court, the appellant herein appeared and filed the statement of objections. In order to substantiate his case, the

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respondent herein examined himself as PW-1 and his mother was examined as PW-2. The respondent herein produced four documents which were marked as ExhibitsP1 to P4. The appellant however did not cross-examine the respondent herein. Further, the appellant did not let in any evidence in respect of her case. Consequently, the trial Court heard the arguments and formulated the following points for consideration:

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1) Whether the petitioner has proved that the respondent has treated the petitioner with cruelty and as such the petitioner is entitled for the relief of divorce under Section 13(1)(ia) of Hindu Marriage Act, 1955?

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2) Whether the petitioner has proved that the respondent has deserted the petitioner and as such, the petitioner is entitled for the relief of divorce under Section 13(1)(ib) of Hindu Marriage Act, 1955?

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3) What decree or order?

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The trial Court answered the points in the

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affirmative and allowed the petition filed by the respondent herein and dissolved the marriage between the parties by granting a decree of divorce by judgment and decree

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dated 23^rd October 2018. Being aggrieved by the same, the wife - Appellant has preferred this appeal.

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We have heard the learned counsel for the appellant and learned counsel for the respondent and perused the records.

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Appellant’s counsel contended that although the appellant contested the petition filed by the respondent herein by filing a statement of objections, she, however, could not cross-examine the witnesses of the respondent namely PW.1 and PW-2. Further, she could not also let in her evidence in the matter. That the divorce petition filed by the respondent, which has been allowed by granting decree of divorce is virtually an ex-parte one. He submitted that on account of non-participation of the appellant in the proceedings before the trial Court, the decree has been granted against her which has caused grave prejudice to the appellant. He submited that the appellant had valid reasons for non-participation in the proceedings before the trial Court and therefore, an

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opportunity may be given to the appellant to contest the divorce proceedings by setting aside the impugned judgment and decree and remanding the matter to the trial Court. He further submits that appropriate terms may be imposed against the appellant herein while granting an opportunity to contest the divorce petition filed by the respondent-husband before the trial Court.

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Per contra, learned counsel for the respondent supported the judgment and decree of the trial court and contended that the respondent cannot be put to a disadvantage and prejudice on account of absence and non-participation of the appellant before the trial Court. He submitted that all efforts were made between the parties by well-wishers and others to bring them together but in vain. That it is difficult for the respondent to lead a marital life with the appellant herein. He, therefore, submitted that the impugned judgment and decree may be confirmed as there cannot be any different conclusion which could be arrived at by the trial court even on

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remand. He, therefore, submitted that there is no merit in the appeal and the same may be dismissed.

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Having heard the learned counsel for the

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respective parties, the following points arise for our consideration:

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1) Whether the judgment and decree of the trial Court call for any interference in this appeal?

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2) What order?

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The fact that the respondent instituted

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M.C.No.129/2016 before the trial Court in which the appellant appeared pursuant to the notice being served on her and filed her statement of objections is not in dispute. It is also not in dispute that the appellant herein did not thereafter participate in the proceedings before the trial court inasmuch as she did not cross-examine PW-1 and PW-2 and also did not let in her evidence in support of her case. Consequently, the trial court considered the evidence of the respondent herein and on formulating the points for

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consideration has allowed the petition and has dissolved the marriage between the parties by a decree of divorce. Despite the aforesaid facts, what is required to be noted is the fact that the appellant herein after filing her statement of objections so as to contest the divorce proceedings did not participate in the proceedings inasmuch as she did not cross-examine PW-1 and PW-2 and also did not let in her evidence in support of her case. Therefore, virtually the proceedings before the trial Court has been an exparte one and the impugned judgment and decree is virtually an exparte judgment and decree. The fact remains that the appellant herein did not contest the matter and is now faced with the judgment and decree of dissolution of her marriage by a decree of divorce which is now sought to be contested before this Court.

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Since there is no evidence which has been let-

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in by the respondent in order to substantiate her case and also the fact that she failed to cross-examine PW-1 and 2 and in the circumstances, we find that the interest of

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justice would be subserved if an opportunity is given to the appellant to cross-examine the witnesses viz., PW-1 and PW-2 and also an opportunity be given to let-in her evidence in order to substantiate her case as to why her marriage with the respondent ought not to be dissolved by a decree of divorce.

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In the circumstances, the impugned judgment and decree of the Senior Civil Judge, Kundapura passed in M.C.No.129/2016 dated 23^rd October 2018 is set aside. The matter is remanded to the concerned trial Court for fresh consideration from the stage of cross-examination of PW-1; respondent is at liberty to let-in additional evidence; the appellant on cross-examination of the witnesses of the respondent is at liberty to let in her evidence in the matter and thereafter, the trial court shall consider the petition and dispose of the same in accordance with law.

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Since the parties are represented by their respective counsel, they shall appear before the concerned trial Court on 18^th November 2019 without expecting any

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separate notice from the said Court. Both the parties are directed to cooperate with the concerned trial Court for expeditious disposal of the petition.

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The appeal is allowed and disposed of with the aforesaid terms.

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The trial Court shall dispose of the petition within a period of six months from 18.11.2019.

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Parties to bear their respective costs.

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Sd/JUDGE

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Sd/JUDGE

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Prs*

Mrs Shwetha Hande v. Dr Harish Holla

Case brief

What is this about?

What did the court decide?

Mrs Shwetha Hande v. Dr Harish Holla

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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