Remanded

Smt. G. Geetha v. Sri. Lokesh @ Munianjinappa

Karnataka HC12 Feb 2021MFA/4734/2016

Case brief

AI extract

What is this about?

The High Court held that the respondent-wife in the underlying divorce proceedings was never properly served notice as the postal and court records indicated she was out of station. Consequently, the High Court set aside the impugned divorce decree and remanded the matter to the Trial Court for fresh disposal after affording both parties a reasonable opportunity to lead evidence. The High Court al

What did the court decide?

Impugned judgment and decree dated 22/07/2015 passed in M.C.No.19/2014 set aside. Matter remanded to Trial Court for fresh disposal.

Smt. G. Geetha Vs Sri. Lokesh @ Munianjinappa — Matrimonial and Divorce | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF FEBRUARY, 2021

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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 MRS.JUSTICE M.G.UMA

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MISCELLANEOUS FIRST APPEAL NO.4734 OF 2016 (MC)

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BETWEEN:

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SMT.G.GEETHA WIFE OF LOKESH @ MUNIANJINAPPA DAUGHTER OF PUTTAMMA AGED ABOUT 30 YEARS RESIDING AT 21^ST CROSS NEAR RAMA TEMPLE, BUCHAPPA ROAD EIJIPURA, VIVEKANAGAR POST BENGALURU-560 047.

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... APPELLANT

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(BY SRI: CHANDRASHEKAR P.PATIL, ADVOCATE (PH))

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AND:

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SRI.LOKESH @ MUNIANJINAPPA SON OF CHOODAPPA, MAJOR RESIDING AT SEETHANAYAKANAHALLI VILLAGE JIGANI HOBLI, ANEKAL TALUK BENGALURU URBAN DISTRICT-562 106.

... RESPONDENT

(RESPONDENT SERVED)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 28(1) OF HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED 22/07/2015 PASSED IN M.C.NO.19/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,, ANEKAL, ALLOWING THE PETITION FILED UNDER SECTION 13(1) 1(a) & 1(b) OF THE HINDU MARRIAGE ACT, FOR DIVORCE DISSOLVING THE MARRIAGE.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, M.G.UMA, J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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The legality and correctness of the judgment and decree dated 22/07/2015 passed in M.C.No.19 of 2014 by the learned Senior Civil Judge and JMFC, Anekal, (for short “the Trial Court”) is assailed by the wife in this appeal.

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The parties are referred to as per their rank

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before the Trial Court for the sake of convenience.

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Briefly stated the facts are that, the petitioner-

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husband had filed petition under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act of 1955” for the sake of brevity) seeking dissolution of his marriage with the respondent-wife on the

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ground of desertion and cruelty. The petitioner and the

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respondent married on 06/12/2001 at Ravi Sutha Kalayana Mantapa, Sri.Shanishwara Temple, Bannerughatta Road, Anekal Town as per Hindu rites and customs. After marriage, they lived together and begotten three children. The petitioner contended before the Trial Court that he is the only son of his parents and the respondent used to pick up quarrel with his parents very frequently and also used to quarrel with the petitioner every now and then. The petitioner was forced to partition the residential house into two portions to reside separately with the respondent and the children. However, the respondent continued her behavior and used to treat the petitioner with cruelty and during April 2009, on the next day of Ugadi festival, respondent left the matrimonial house and started residing with her parents. Even when the petitioner approached and requested her to come back to lead marital life, she insisted for separate house in Koramangala, Bengaluru. The petitioner’s father paid Rs.10,000/- to enable the petitioner to arrange for a separate house as per the demand made by the respondent. In spite of that,

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respondent has not changed her behavior and she used to ill-treat the petitioner both physically and mentally. The efforts made by the petitioner and elders did not give any fruitful result. The petitioner contended that since 2009, the respondent has deserted him without any reasonable cause. Therefore, he issued legal notice on 23/11/2013 calling upon the respondent to join him. The respondent willfully refused to receive the notice. Therefore, the petitioner filed the petition seeking dissolution of marriage in M.C.No.19 of 2014 before the Trial Court under Section 13(1)(i-a)(i-b) of the Act of 1955.

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It is stated that notice issued by the Family

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Court was also refused by the respondent and therefore, she was placed exparte. The petitioner examined himself as PW1 and got marked Exs.P1 to 4 in support of his defence. The Trial Court on the basis of the material on record proceeded to allow the petition and the marriage between the petitioner and the respondent was dissolved by a decree of divorce on the ground of cruelty. Being

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aggrieved by the judgment and decree passed by the Trial Court, the wife has preferred this appeal.

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We have heard Sri.Chandrashekar P.Patil,

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learned counsel for the appellant who is the respondent before the Trial Court. The respondent was served on 04.08.2016, but he has not chosen to appear either inperson or through counsel.

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Learned counsel for the appellant contended

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that the notice issued by the Trial Court was never served on the appellant and she never received the same. But the Trial Court in its judgment has stated that the wife has refused to receive the Court notice and therefore, she was placed exparte. Under such circumstances, the Trial Court proceeded to consider the petition of the petitioner exparte in the light of oral and documentary evidence placed by the petitioner and proceeded to allow the petition by the impugned judgment and decree dated 22/07/2015. The respondent-wife was not afforded any opportunity to defend the claim of the petitioner. Hence, he prays for

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allowing the appeal by setting aside the impugned judgment and decree passed by the Trial Court.

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We have perused copy of the endorsement of the Process Nazar made available by learned counsel for the appellant, wherein it is endorsed that the respondent is out of station. But, the order sheet dated 05/06/2014 maintained by the Trial Court in MC No.19 of 2014 refers to the notice sent through RPAD to the respondent as duly served and that she has not appeared before the Court. Therefore, she was placed exparte. But the RPAD envelope which is returned by the postal authority is having the endorsement that the addressee is not found. Therefore, it is clear that the Trial Court has mislead itself by stating that the respondent has either refused to receive the notice or even after due service of notice through RPAD not appeared before the Court and hence, she was placed exparte. The endorsement of the process Nazar and the RPAD envelope returned by the postal authorities disclose that both these notices were never

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served on the respondent as required under law. Hence, it is clear that the respondent has not received any notices relating to M.C.No.19 of 2014 filed by the petitioner and therefore, she could not contest the matter. Therefore, we are of the opinion that the impugned judgment and decree of divorce dissolving the marriage of the petitioner and the respondent is liable to be set aside and the matter has to be remanded to the Trial Court for fresh disposal by offering reasonable opportunity to both the parties to lead their evidence in support of their contention.

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In view of the aforesaid discussion, the appeal is disposed. The impugned judgment and decree dated 22/07/2015 passed in M.C.No.19 of 2014 by the learned Senior Civil Judge and JMFC, Anekal, is set aside. The matter is remanded to the Trial Court for fresh adjudication.

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The appellant-wife is directed to appear before the Trial Court on 15/03/2021 without expecting any separate notice from the said Court. Since the petitioner-

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husband has not appeared before this Court, the Trial Court shall issue notice to him and thereafter dispose M.C.No.19 of 2014 in accordance with law.

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No costs.

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In view of disposal of the appeal, IA No.2 of 2016 filed for stay stands disposed.

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Sd/JUDGE

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Sd/JUDGE

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*bgn/-

Smt. G. Geetha v. Sri. Lokesh @ Munianjinappa

Case brief

What is this about?

What did the court decide?

Smt. G. Geetha v. Sri. Lokesh @ Munianjinappa

Case brief

What is this about?

What did the court decide?

What the court decided

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