Allowed

Sri Vinay Nagappa v. Dr Rajini Surendra

Karnataka HC20 Oct 2022MFA/3382/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal and set aside the Family Court's ex-parte decree. The Court held that the appellant was not given a proper opportunity to file a written statement or contest the suit on merits regarding the validity of a foreign divorce decree. The matter is remanded with a direction to the Family Court to afford the requisite opportunity.

What did the court decide?

The impugned judgment and decree are set aside, and the matter is remanded with a direction to give the appellant an opportunity to file a written statement.

Sri Vinay Nagappa Vs Dr Rajini Surendra — Matrimonial and Divorce | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF OCTOBER, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE S.VISHWAJITH SHETTY

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M.F.A. No.3382/2012 (FC)

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BETWEEN:

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SRI VINAY NAGAPPA S/O SRI NAGAPPA HARALAPPA AGED ABOUT 38 YEARS PERMANENTLY R/O NO.349 9TH MAIN ROAD, DOLLAR LAYOUT J.P.NAGAR, 4TH PHASE BANGALORE - 78 PRESENTLY RESIDING AT NO.225 ROLLEYCARWAY MORRIS VILE NORTH CAROLINA ZIP CODE - NC 27560. (BY SRI S. SREEVATSA, SR. COUNSEL FOR SRI UDITA RAMESH, ADV.)

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...APPELLANT

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AND:

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DR RAJINI SURENDRA W/O SRI VINAY NAGAPPA D/O SRI SURENDRA SREENIVASAIAH AGED ABOUT 34 YEARS R/A NO.347, 12TH CROSS 2ND BLOCK, R.T.NAGAR BANGALORE - 560 032. ...RESPONDENT

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(BY SRI K.B. MONESH KUMAR, ADV.)

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THIS M.F.A. IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE EX-PARTE ORDER PASSED IN O.S.NO.156/2010 DATED

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25.01.2012 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT AT BANGALORE DISTRICT BANGALORE AND CONSEQUENTLY TO REMAND THE MATTER BY GIVING AN OPPORTUNITY TO THE APPELLANT TO CONDUCT AND PROSECUTE THE CASE ON MERITS ALSO FOR CONCILIATION AND MEDIATION TO RESOLVE THE MATRIMONIAL DISPUTE.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This Miscellaneous First Appeal is filed under Section 19(1) of the Family Courts Act, 1984, assailing the judgment and decree dated 25.01.2012 passed by the I Addl. Principal Judge, Family Court, Bengaluru, in O.S.No.156/2010.

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Heard the learned Counsel for the parties.

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Brief facts of the case leading to the filing of this appeal are, the marriage of the appellant and the respondent was solemnized as per the Hindu rites at Bengaluru on 25.05.2001, and subsequently, the marriage was also registered in the marriage registration office on 31.05.2001. The parties are doctors by profession and after the marriage, they had shifted to United States of America (USA) on employment and had begotten a male child in USA in the year 2006. It appears

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that the relationship between the parties was strained when they were staying in USA and the appellant had initiated proceedings for the custody of the child and a restraint order was passed in the said proceedings. Thereafter, the respondent came back to India along with the child. Subsequently, it appears that the appellant had initiated proceedings before the jurisdictional Court at USA seeking divorce and the same was allowed by order dated 14.05.2010. The respondent had, therefore, filed O.S.No.156/2010 before the Family Court, Bengaluru, to declare that the decree of divorce dated 14.05.2010 granted by the General Court of Justice, District Court Division 10, CVD 4416, North Carolina, USA, against her as void and not binding on her and also to declare that she is the legally wedded wife of the appellant and her marriage with the appellant solemnized on 25.05.2001 at Bengaluru and registered on 31.05.2001 is valid and subsisting. The said suit was decreed by the impugned judgment and decree dated 25.01.2012 and being aggrieved by the same, the respondent has preferred this appeal.

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Learned Counsel for the appellant submits that the Family Court had not provided sufficient opportunity to him to defend his case. He submits that undisputedly, the appellant was residing in USA and the Family Court has hurriedly proceeded with the matter and granted a decree of divorce. He submits that he has got a good case on merits, and therefore, an opportunity is required to be given to him before the Family Court. He has referred to the order sheet maintained by the Family Court and submits that a perusal of the same would go to show that proper opportunity was not given to the appellant to file his written statement or to lead evidence.

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Per contra, learned Counsel appearing for the respondent has argued in support of the impugned judgment and decree and has relied upon the judgments in the case of Y.NARASIMHA RAO & OTHERS VS Y.VENKATA LAKSHMI & ANOTHER¹ and SONDUR GOPAL

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VS SONDUR RAJINI² in support of his contention that since the parties are the citizens of India and their

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1 (1991)3 SCC 451

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2 (2013)7 SCC 426

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marriage was solemnized in India, the Court in USA had no jurisdiction to grant a decree of divorce.

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We have carefully appreciated the arguments addressed on both the sides and also perused the material on record.

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The order sheet maintained by the Family Court in O.S.No.156/2010 would go to show that after service of notice on the appellant herein who was the respondent before the Family Court, he had entered appearance through his advocate on 05.04.2011. The matter was thereafter adjourned to 01.06.2011 for conciliation. On 01.06.2011, both the parties were absent, and therefore, the matter was adjourned for filing of written statement and for conciliation to 03.08.2011. On 03.08.2011, both the parties were absent before the Family Court. The advocate appearing for the appellant herein had made a request before the learned Judge of the Family Court, to grant him some time for filing his written statement since his party was abroad. However, the Family Court rejected his prayer and took that written statement was not filed on behalf of the appellant and posted the matter for

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plaintiff's evidence on 08.09.2011. Thereafter, the plaintiff had led her evidence and the Family Court after hearing the advocate for the plaintiff, had passed the impugned judgment and decree.

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From the perusal of the order sheet maintained

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by the Family Court, it is clear that proper opportunity was not given to the appellant to file his written statement and put forward his defence. The appellant had entered appearance on 05.04.2011, and thereafter, the matter was posted to 01.06.2011 for conciliation, on which date, both the parties were absent. On the next date, i.e., on 03.08.2011, the written statement was taken as not filed and the matter was posted for evidence. Under the circumstances, we are of the considered view that the impugned judgment and decree passed by the Family Court cannot be sustained and an opportunity to the appellant is required to be given to file

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the written statement in support of his defence and contest the suit on merits before the Family Court.

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Since we are not deciding the case on its merits

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and the matter is being remanded to the Family Court on

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the short ground that the appellant was not granted proper opportunity to defend his case before the Family Court, it is not necessary for us to advert to the judgments on which reliance has been placed by the learned Counsel for the respondent. Accordingly, the following order.

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The appeal is allowed. The impugned judgment and decree dated 25.01.2012 passed by the I Addl. Prl. Judge, Family Court, Bengaluru, in O.S.No.156/2010 is set aside. The matter is remanded to the Family Court with a direction to provide an opportunity to the appellant to file his written statement and contest the suit on merits.

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Sri Vinay Nagappa v. Dr Rajini Surendra

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Sri Vinay Nagappa v. Dr Rajini Surendra

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