Allowed

Smt D S Sheelavathi v. B S Vedamurthy

Karnataka HC9 Oct 2020MFA/8177/2013

Case brief

AI extract

What is this about?

High Court Karnataka allowed a wife's appeal against a husband's divorce petition. The Court found the Family Court erred in eschewing the wife's evidence due to her absence at cross-examination on an adjourned date and remanded the case for fresh hearing.

What did the court decide?

Impugned judgment and decree set aside; matter remanded to Family Court for cross-examination of appellant and disposal on merits.

Smt D S Sheelavathi Vs B S Vedamurthy — Matrimonial and Divorce | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 9^TH DAY OF OCTOBER, 2020

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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 N.S. SANJAY GOWDA

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M.F.A. No.8177 OF 2013 (FC)

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BETWEEN:

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SMT. D.S. SHEELAVATHI W/O. B.S. VEDAMURTHY, AGED ABOUT 36 YEARS, OCC: HOUSE WIFE, ADD: NO.262/B, 10^TH A MAIN ROAD, SHANTINEKETHAN LAYOUT, BANGALORE – 76. ... APPELLANT

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(BY SRI VENKATESH P. DALWAI, ADVOCATE (THROUGH VIDEO CONFERENCE))

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AND:

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B.S. VEDAMURTHY S/O. LATE H.S. SOMASHEKARAN, AGED ABOUT 37 YEARS, OCC: SERVICE, ADD: NO.56/C, 2^ND CROSS, 19^TH MAIN, BSK 1^ST STAGE, BANGALORE – 50. ... RESPONDENT

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(BY SRI M.G. SATHEESHA, ADVOCATE (THROUGH VIDEO CONFERENCE))

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THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED:21.08.2013 PASSED IN M.C.NO.2875/2010 ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, ALLOWING THE PETITION FILED U/S 13(1)(ia) OF THE HINDU MARRIAGE ACT, FOR DISSOLUTION OF MARRIAGE.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, SANJAY GOWDA J., MADE THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the wife calling in question the judgment and decree dated 21.08.2013 passed by the II Additional Principal Judge, Family Court at Bengaluru, in M.C.No.2875/2010,.

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By the said judgment and decree, the petition filed by the respondent/husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’, for the sake of brevity) has been allowed and the marriage between the parties, which was solemnized on 11.09.2008 at Bengaluru has been dissolved by a decree of divorce granting permanent alimony of Rs.5,000/- per month to the appellant/wife from the date of the judgment of the Family Court with liberty to seek enhancement of permanent alimony at an appropriate time. Being aggrieved, the respondent/wife has preferred this appeal.

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Briefly stated, the facts are that Sri B.S.Vedamurthy, the respondent/husband initiated proceedings for dissolution of marriage which was solemnized on 11.09.2008 with Smt. Sheelavathi, the appellant herein, on the ground that she had treated him with cruelty. The

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respondent pleaded that there was sexual incompatibility and the behaviour of the appellant was erratic and that she was in the habit of abusing him and his mother.

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The appellant entered appearance and contested the petition before the Family Court, Bengaluru. She denied the allegations of cruelty made against her and put forth the plea that she was harassed mentally and physically and was also subjected to innumerable demands of dowry.

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In support of the petition averments, the respondent/husband examined himself on 24.10.2011 and he was also cross-examined in full on 11.02.2013 and during the course of his deposition, he produced 18 documents.

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The appellant/wife, thereafter, examined herself on 04.04.2013 and initially got marked 11 documents. She was also cross-examined on the same day. Subsequently, on her request, the appellant was recalled and was further examined on 12.04.2013. During the course of her examination, she produced 51 documents and the matter was thereafter posted for cross-examination to 31.05.2013. However, on 31.05.2013, since the appellant herein was absent and the respondent herein was present,

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the Family Court passed an order stating that the appellant had not ventured to subject herself for cross-examination and hence, the matter was required to be posted for hearing on merits to 07.06.2013.

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The Family Court, thereafter, on 21.08.2013 by the impugned order, allowed the petition of the respondent by granting decree of divorce. Hence, this appeal.

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We have heard learned counsel for the respective parties and perused the material on record as well as the original record.

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Having heard learned counsel for the respective parties, the following points would arise for our consideration:

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(i) Whether the impugned judgment and decree dated 21/08/2013, passed in M.C.No.2875/2010 by the II Additional Principal Judge, Family Court at Bengaluru would call for any interference in this appeal?

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(ii) What order?

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On perusal of the material on record, it is clear that only because the appellant was not present for crossexamination on the adjourned date i.e., on 31.05.2013,

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her entire evidence adduced on 12.04.2013 and on which the appellant produced documents which were marked as Ex.R10 to Ex.R51, has been eschewed by the Family Court and the Family Court has proceeded to consider the matter on merits without reference to the documents that were produced vide Ex.R10 to Ex.R.51.

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We are of the view that this approach of the Family Court is incorrect. The appellant, having been permitted to produce the documents on 12.04.2013, ought to have been afforded a reasonable opportunity to subject herself for cross-examination and merely because she did not appear on the adjourned date i.e., on 31.05.2013, the Family Court ought not to have come to the conclusion that she had not subjected herself for cross-examination and therefore, the evidence produced by her should not be looked into.

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Thus, without examining the merits of the matter, in our view, justice would be served, if the impugned order is set aside and the matter is remanded with a direction to the Family Court to permit the appellant to present herself and be subjected for cross-examination and thereafter,

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direct the Family Court to consider the entire matter afresh and pass appropriate orders in accordance with law.

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In the result, point No.1 is answered in favour of the appellant/wife. Consequently, the appeal is allowed. The impugned judgment and decree is set aside. The matter is remanded to the Family Court, Bengaluru, for the purpose of enabling the respondent/husband to cross-examine the appellant/wife vis-à-vis the evidence let-in by her on 12.04.2013 particularly with regard to Ex.R10 to Ex.R51. On conclusion of such evidence, the Family Court to hear the respective parties on the merits of the case and to dispose of M.C.No.2875/2010 in accordance with law.

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Since the parties are represented by their respective counsel, they shall appear before the Family Court without expecting any separate notices from the said Court on 18.11.2020.

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On the said date or on any other date stipulated by the Family Court, respondent’s counsel to cross-examine the appellant herein.

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Since the matter is of the year 2010, the Family Court to dispose of the proceeding on or before 28.02.2021.

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Both parties are directed to co-operate with the Family Court for expeditious disposal of the proceeding.

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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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S*/PKS

Smt D S Sheelavathi v. B S Vedamurthy

Case brief

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Smt D S Sheelavathi v. B S Vedamurthy

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