Allowed

Sri. Aashrith Dayanand, v. Nil

Karnataka HC28 Nov 2023MFA/6664/2023

Case brief

AI extract

What is this about?

In a first appeal under Section 13B of the Hindu Marriage Act, the Karnataka High Court set aside a Family Court order dismissing a mutual consent divorce petition. The Court held that the trial court erred in requiring proof for a power of attorney executed before a Consul and abused its process by ignoring a previous High Court order allowing SPOA holders. The matter was remanded for disposal.

What did the court decide?

The appeal allowed. Impugned order set aside. Applications for SPOA allowed. Matter remanded for evidence and disposal within four months.

Sri. Aashrith Dayanand, Vs Nil — Matrimonial and Divorce | Karnataka HC (2023)

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1 - NC: 2023:KHC:42921-DB MFA No. 6664/2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^TH DAY OF NOVEMBER, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR JUSTICE K V ARAVIND MISCELLANEOUS FIRST APPEAL NO.6664/2023 (FC)

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BETWEEN:

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SRI.AASHRITH DAYANAND S/O SRI DAYANAND D C AGED ABOUT 34 YEARS PRESENTLY R/AT PLASSEY VILLAGE ROOM NO.367, UNIVERSITY OF LIMERICK CASTLETROY, LIMERICK COUNTY V94 WR96, IRELAND ALSO R/AT NO.972, 2^ND MAIN 4^TH BLOCK, RAJAJINAGAR BENGALURU – 560 010

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Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka

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REPRESENTED BY HIS SPA HOLDER SRI D C DAYANAND S/O LATE D CHANDRASHEKARAIAH AGED ABOUT 66 YEARS R/AT NO.972, 2^ND MAIN ROAD 4^TH BLOCK, RAJAJINAGAR BENGALURU – 560 010

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SMT CHAITHRA LINGAPPA D/O SRI LINGAPPA M AGED ABOUT 29 YEARS PRESENTLY R/AT UNIT 310, 5 NINA GREY AVENUE RHODES 2138 ALSO R/AT NO.1578, 5^TH BLOCK VISHVESWARAIAH BDA LAYOUT MAGANAHALLI CROSS ULLAL MAIN, BENGALURU – 560 056 REPRESENTED BY HER SPA HOLDER SRI LINGAPPA M S/O MADAPPA AGED ABOUT 66 YEARS R/AT NO.1578

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NC: 2023:KHC:42921-DB MFA No. 6664/2023

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5^TH BLOCK, VISVESWARAIAH BDA LAYOUT, MAGANAHALLI CROSS ULLAL MAIN

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BENGALURU – 560 056 …APPELLANTS

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(BY SRI. SANDESH C R, ADVOCATE FOR SRI.JAYARAJ D.S., ADVOCATE)

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AND:

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NIL …RESPONDENT

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT, 1984, PRAYING TO SET ASIDE THE ORDER DATED 03.08.2023 PASSED IN MC.NO.5019/2022 ON THE FILE OF THE III ADDITIONAL PRL. JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE PETITION FOR DEFAULT AND NON PROSECUTION WITH LIBERTY TO FILE FRESH PETITION, AS PER LAW, INTERESTED AND ETC.

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THIS APPEAL COMING ON FOR FINAL DISPOSAL THIS DAY, K.S.MUDAGAL J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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Since the TCRs are received, the production of typed

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copies of Annexures is not required. Therefore IA No.1/2023 for dispensation is disposed of accordingly.

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Heard the appellant’s counsel.

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Challenging the dismissal of their petition under

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Section 13B of the Hindu Marriage Act, 1955 (‘the Act’ for short) for dissolution of marriage by mutual consent, the appellants have preferred this appeal.

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The marriage of the appellants was solemnized on 18.03.2020 at Basaveshwara Sugnana Mantapa. The parties are governed by Hindu Marriage Act, 1955. The marriage was registered on 12.08.2021 before the Registrar of Marriage, Rajajinagar, Bengaluru. The appellants henceforth are referred to according to their ranks before the trial Court.

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The petitioners presented the petition under Section 13B of the Act on 12.08.2022 before the trial Court seeking dissolution of their marriage on the ground that there are serious differences between them and there is no chance of reunion. On the application of the petitioners to waive off the cooling period of six months, the trial Court by order dated 23.09.2022 waived off the cooling period of six months and referred the matter to mediation. The dates and events

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relevant to the matter are as follows:

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Sl. No.	Date	Order
1	12.08.2022	Petition presented before the Trial court for dissolution of marriage.
2	16.08.2022	IA No.1 allowed. Adjourned to 29.09.2022
3	22.09.2022	Petition was taken on board. Heard IA. No.2. Adjourned to 23.09.2022 for orders.
4	23.09.2022	IA. No.2 allowed to waive off cooling- period and referred to mediation. Adjourned to 27.10.2022 awaitingreport.

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5	15.10.2022	Case advanced. IA.No.3 for permission to
		Petitioner No.1 to be represented through his mother/Special Power of Attorney holder filed. To produce documents and for hearing adjourned to 27.10.2022
6	27.10.2022	Adjourned to 30.01.2023 for compliance of order dated 15.10.2022.
7	21.11.2022	Preponed at the request of petitioners to produce the copies of the documents and Petitioners seek time for compliance. Adjourned to 01.12.2022.
8	01.12.2022	For arguments regarding the documents produced by21.11.2022.
9	15.12.2022	For compliance of order dated 15.10.2022 by 19.01.2023
10	19.01.2023	For compliance of order dated 15.10.2022 (adjourned four times till 16/02/2023)
11	24.01.2023	Preponed at the request of petitioners and adjourned to 13.02.2023 for hearing.
12	13.02.2023	Adjourned to 14.02.2023
13	14.02.2023	Adjourned to 15.02.2023
14	15.02.2023	Adjourned to 16.02.2023
15	16.02.2023	Petitioners pray time for clarification. Adjourned to 27.02.2023.
16	27.02.2023	For clarification by21.03.2023.
17	21.03.2023	Filed additional affidavit with documents. Adjourned to 13.04.2023
18	06.04.2023	W.P. No. 8485/2023(GM FC) before the High Court seeking mandamus to trial court to pass orders on IA No.3.
19	13.04.2023	Heard IA. No. 3. Adjourned to 15.04.2023 for orders.
20	15.04.2023	For orders by 20.04.2023
21	20.04.2023	For orders by 24.05.2023
22	24.05.2023	For orders by26.05.2023
23	26.05.2023	For orders by31.05.2023
24	31.05.2023	Adjourned to 09.06.2023 for further arguments regarding compliance of order dated 15.10.2022, despite the documents being produced earlier bythepetitioner.

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25	09.06.2023	Petition dismissed on the grounds of Non- Compliance of order dated 15.10.2022 and that matter is not settled as per Mediation Report.
26	13.06.2023	W.P. No. 8485/2023(GM FC) before the High Court disposed as having become infructuous.
27	27.06.2023	MFA No. 4208/2023 allowed and Order dated 09.06.2023 set aside.
28	30.06.2023	Preponed on application of Petitioners. For orders adjourned to 31.07.2023.
29	04.07.2023	Preponed on application of Petitioners. Adjourned to 31.07.2023.
30	31.07.2023	Petitioner filed application for withdrawal of IA No. 3, filed IA Nos. 4 and 5. Adjourned to 01.08.2023 for compliance of order dated 15.10.2022.
31	01.08.2023	Heard the application and submitted copy of two documents. For orders by 02.08.2023.
32	02.08.2023	For orders by 03.08.2023.
33	03.08.2023	Dismissed the petition again.

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On 03.08.2023 by the impugned order, the trial

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Court dismissed the petition for non-prosecution on the ground that the petition was already dismissed on 09.06.2023 for non-prosecution, still the petitioners filed application for advancement and IA Nos.4 and 5, without recalling the order dated 09.06.2023 and no grounds are made out for restoration of the petition. IA filed by petitioner No.1 seeking permission for representation

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through his father as special power of attorney holder and IA No.5 filed by petitioner No.2 seeking permission for her father to represent her as her special power of attorney holder were dismissed.

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The records show that though the petition was filed on 12.08.2022, the trial Court went on adjourning the matter up to 09.06.2023 for nearly one year, only on the ground that the petitioner shall produce the documents in proof of the presence of petitioner No.1 in India at the time of execution of the special power of attorney. Petitioner No.1’s second special power of attorney was executed before the Consul of Embassy of India in Dublin. The whole exercise of the trial Court in seeking proof of execution of the document itself was misplaced and contrary to Section 85 of the Indian Evidence Act, 1872 (for short “Evidence Act”) which reads as follows:

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“ 85. Presumption as to powers-of-attorney .– The

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Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public , or any Court, Judge, Magistrate, [Indian] Consul or ViceConsul , or representative of the [Central Government], was so executed and authenticated.”

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The above documents were executed before notary/viceconsul and had presumptive value.

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Section 4 of the Evidence Act defines ‘shall presume’ as follows:

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“4. “May presume”.— Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

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“Shall presume”.— Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved .

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“Conclusive proof”.— When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. ”

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The reading of the above provision makes it clear that once the law states that an existence of certain fact shall be presumed, the Court cannot doubt that unless and until the same is disproved.

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Section 3 of the Act defines the term ‘disproved’

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as follows:

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“3. Interpretation clause. —In this Act the following words and expressions are used in the

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8 - NC: 2023:KHC:42921-DB MFA No. 6664/2023

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following senses, unless a contrary intention appears

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from the context:—

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“ Disproved ”. — A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought , under the circumstances of the particular case, to act upon the supposition that it does not exist .”

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The reading of the above provision shows that to hold

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that a fact is disproved the Court shall examine the same from the point of view of a prudent man. In the present case, petitioner Nos.1 and 2 claimed that they have executed the special power of attorneys in favor of their parents. It was for them to dispute such execution of the special power of attorney, which they did not dispute. Based on the very same power of attorney they questioned the order of the family Court before this Court in the above said Writ Petition and Miscellaneous First Appeal. This Court acting upon such special power of attorneys considered their matters. Under such circumstances no person of ordinary prudence could say that existence of power of attorneys are improbable.

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Therefore the trial Court not only committed

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grave error, but also committed judicial impropriety in

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disbelieving the power of attorney based on which this Court had entertained two cases.

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Despite this Court in MFA No.4208/2023 setting aside the order of the Trial Court dated 09.06.2023, the trial Court in the impugned order says that the said order is not recalled. By such conduct the trial Court has overreached the order of this Court in MFA No.4208/2023. The above facts and circumstances show that the parties are subjected to harassment only because they wanted to follow due process of law. Thus such act of the trial Court is deprecable.

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The other ground of termination of the proceedings by the trial Court is that the matter is not settled in the mediation and the parties have not done the needful for quite long time. The precondition for such termination of the proceedings as contemplated under Section 13B(2) is that the matter shall be disposed of within 18 months. In the present case, the said 18 months had also not lapsed. Moreover in those 18 months the time occupied in the proceedings before this Court had to be excluded. Therefore the dismissal of the petition is unjustifiable.

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For the aforesaid reasons, the appeal deserves to be allowed. The matter needs to be remanded to the trial Court for fresh consideration. Hence the following:

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ORDER

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The appeal is allowed. The impugned order dated 03.08.2023 passed by the III Addl. Principal Judge, Family Court is hereby set aside.

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The applications IA Nos.4 and 5 filed by the parties before the trial Court to prosecute the matter through their special power of attorneys are hereby allowed.

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Since as per the mediation report, the matter is not settled, the trial Court shall record the evidence of the parties and dispose of the matter in accordance with law.

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To avoid further delay, the special power of attorney holders of the petitioners shall appear before the trial Court on 18.12.2023 without any further notice.

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On such appearance the trial Court shall record the evidence and dispose of the matter as expeditiously as possible at any rate within four months from the date of appearance of the parties before the trial Court.

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If at all the trial Court finds that the presence of the parties is required for any reason they are permitted to appear virtually.

Sd/JUDGE

Sd/JUDGE

AKC

List No.: 1 Sl No.: 33

Sri. Aashrith Dayanand, v. Nil

Case brief

What is this about?

What did the court decide?

Sri. Aashrith Dayanand, v. Nil

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