Partly allowed

Smt Ashwini v. Sri Nagaraj B C

Karnataka HC23 May 2023MFA/6982/2019

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal challenges a Family Court decree dissolving a marriage. The Court permitted the primary argument that the respondent's counsel erred in noting the adjourned date, causing absence. The appeal was partly allowed, and the decree was set aside to remand the case for fresh consideration, ensuring the respondent's right to cross-examine.

What did the court decide?

Impugned judgment and decree dated 28.06.2019 are set aside and matter remitted to Family Court for fresh consideration with opportunity for cross-examination.

Smt Ashwini Vs Sri Nagaraj B C — Matrimonial and Divorce | Karnataka HC (2023)

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1 - MFA No. 6982 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF MAY, 2023

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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 ANANT RAMANATH HEGDE MISCELLANEOUS FIRST APPEAL NO. 6982 OF 2019 (FC)

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BETWEEN:

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SMT ASHWINI, W/O NAGARAJ B.C., D/O GANESHA ACHARYA, AGED ABOUT 26 YEARS, WORKING AT TITANIC, WATCH COMPANY, BANGALORE, R/O MELGATTA, KIGGA POST, SHRINGERE TALUK, CHIKKAMAGALURU DISTRICT.

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…APPELLANT (BY SRI CHANDRASHEKAR C., ADVOCATE)

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AND:

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Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA

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SRI NAGARAJ B. C., S/O CHANDRAYYA ACHARYA, AGED ABOUT 35 YEARS, MECHANIC, C/O K. M. ARUN KUMAR, S/O MANJAPPA K. KOTHWAL, PUTTANANJAPPANA ROAD, SIGEHATTI, SHIVAMOGGA.

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…RESPONDENT

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THIS MFA IS FILED UNDER SECTION 19(1) OF THE FAMILY COURTS ACT AGAINST THE JUDGMENT AND DECREE DATED 28.06.2019, PASSED IN MC NO.233/2018, ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, SHIVAMOGGA, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(1a) OF THE HINDU MARRIAGE ACT.

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MFA No. 6982 of 2019

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING: JUDGMENT

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Heard the learned counsel for the appellant.

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Though the respondent is served, none has

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represented the respondent. Respondent is also not present before the Court.

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This appeal is filed under Section 19 of the Family Courts Act, 1984, against the impugned judgment and decree passed in M.C.No.233/2018 on the file of Family Court, Shivamogga.

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The brief facts of the case are as under:

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The Respondent/husband filed the petition seeking

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dissolution of marriage alleging cruelty by his wife, who is the appellant before this Court. Materials on record would reveal that the marriage was solemnized on 26.05.2017. The appellant/wife appeared before the Family Court and filed statement of objections disputing the allegations made against her. The petition was set down for trial. On 10.04.2019 the petitioner/husband led evidence by filing an affidavit.

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MFA No. 6982 of 2019

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Thereafter, at the request of the learned counsel for the respondent/wife, the case was adjourned. Even on the next date the matter was adjourned at the request. Again the case was called on 14.06.2019. On that day the case was adjourned to 21.06.2019. On 21.06.2019 when the case was called for cross-examination of the petitioner who was present before the Court, the learned counsel for the respondent was not present and the Court has recorded that there is no cross-examination to the petitioner and posted the case for arguments on 26.06.2019. Thereafter, the petitioner was heard on 21.06.2019 and there was no representation for the respondent on that day and the case was posted for pronouncement of the judgment. On 28.06.2019, in terms of the impugned judgment and decree, the petition was allowed and marriage between the petitioner and respondent was dissolved by decree of divorce.

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Aggrieved by the said judgment and decree respondent/ wife is before this Court.

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Heard the learned counsel for the appellant and

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perused the records.

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MFA No. 6982 of 2019

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Learned counsel appearing for the appellant would submit that though the case was adjourned after 10.04.2019 on three occasions to enable the respondent to cross-examine the petitioner, on account of inadvertent mistake, the advocate for the respondent had noted the adjourned date of hearing as 29.06.2019 instead of 21.06.2019. For this reason, the learned counsel for the respondent/wife was not before the Court on 21.06.2019 when the case was called for cross-examination of the petitioner. He would further submit that the counsel was not aware that the case was posted on 21.6.2019 for hearing

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as he had carried the bonafide impression that the case is posted on 29.06.2019. Under these circumstances, he urged to set aside the judgment and decree and to remand the matter to the Family Court for adjudication.

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This Court has perused the records. It is to be noticed from the records that from 21.06.2019, the Court has passed an order that there is no cross-examination as there was no representation for the respondent/wife and accordingly, the case was adjourned to 26.06.2019 for arguments. On that day after hearing the learned counsel for the petitioner the matter was reserved for judgment. In terms of the impugned

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MFA No. 6982 of 2019

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judgment and decree dated 28.06.2019, the petition was allowed. To a pointed question put by the Court to the counsel for the appellant, learned counsel submitted that the respondent has not married subsequent to the dissolution of his earlier marriage. It is to be noticed that the wife has filed statement of objection denying the allegation made in the petition. It appears that the learned counsel for the wife before the Family Court had noted the date of hearing as 29.06.2019 by mistake. For the mistake of the counsel, the party should not suffer. It is also to be noticed that the judgment is delivered in a short span of eight days after the evidence of the petitioner was closed. Though that itself is not an error, considering the fact that the dispute is between the husband and wife and the husband is seeking dissolution of marriage on the ground of cruelty and desertion, this Court is of the view that opportunity should be given appellant/wife to contest the matter on merits.

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Under these circumstances, this Court is of the view

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that the impugned judgment and decree have to be set aside and the matter has to be remitted for fresh consideration in accordance with law.

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6 - MFA No. 6982 of 2019

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This Court has not expressed anything on the

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merits of the matter. The Family Court shall afford an opportunity to the respondent-wife to cross-examine the petitioner and to lead her evidence if any, and thereafter shall decide the petition on merits.

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Hence the following:

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ORDER

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(i) The appeal is allowed in-part.

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(ii) The impugned judgment and decree dated 28.06.2019 on the file of Family Court, Shivamogga are set aside and the matter is remitted back to the Family Court, Shivamogga for fresh consideration in accordance with law.

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Sd/JUDGE

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Sd/JUDGE

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GVP

Smt Ashwini v. Sri Nagaraj B C

Case brief

What is this about?

What did the court decide?

Smt Ashwini v. Sri Nagaraj B C

Case brief

What is this about?

What did the court decide?

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