Allowed

Smt. Nagarathna S.S. @ Hongamma v. Sri. Prakasha P

Karnataka HC5 Jun 2024MFA/2366/2020

Case brief

AI extract

What is this about?

A decree of divorce being a judgment in rem must be proved by acceptable evidence even if undefended. Where husband and wife lived together during marriage, Section 112 of the Evidence Act conclusively presumes the child's legitimacy, rebuttable only by proof of no access; a bare vasectomy claim without documentary proof does not suffice. Unauthenticated DNA and pathology reports, whose authors were not examined, cannot prove adultery. Irregularity in service of notice further vitiated the ex parte decree. Appeal allowed; decree of divorce set aside and matter remanded for fresh consideration.

What did the court decide?

Ex parte divorce decree dated 19.06.2019 in M.C.No.452/2018 set aside; matter remanded to trial court for fresh consideration with directions for expeditious disposal.

Smt. Nagarathna S.S. @ Hongamma Vs Sri. Prakasha P — Matrimonial and Divorce | Karnataka HC (2024)

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NC: 2024:KHC:19774-DB MFA No.2366/2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF JUNE, 2024 PRESENT

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

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.2366/2020 (FC)

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BETWEEN:

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SMT. NAGARATHNA S.S. @ HONGAMMA W/O PRAKASHA P AGED ABOUT 33 YEARS R/AT C/O VENKATESHAPPA NO.222, 5^TH CROSS HOPE FARM AMBEDKARNAGARA WHITEFIELD, BANGALORE 560004

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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(BY SMT. KALPANA P.V. ADV.,) AND:

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…APPELLANT

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SRI. PRAKASHA P S/O POOJAPPA AGED ABOUT 51 YEARS R/AT 97, 2ND CROSS BEHIND ANJINEYA TEMPLE KAVERINAGARA, MAHADEVAPURA BANGALORE-560048.

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ALSO AT: R/AT C/O VENKTESHAPPA NO.222, 5TH CROSS HOPE FARM, AMBEDKARNAGARA WHITEFIELD, BANGALORE 560048. WORKING AT SLV ENTERPRISES NO.7 MANJUNATHASWAMY NILAYA 1ST MAIN, LAKSHMI SAGAR LAYOUT BANGALORE 560048.

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…RESPONDENT

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(BY SMT. SOHANI HOLLA, ADV.,)

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THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 19.06.2019 PASSED IN MC NO.452/2018 ON THE FILE OF THE VII ADDITIONAL PRL. JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 13(1)(i-a) OF HINDU MARRIAGE ACT.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the judgment and decree of divorce passed against her, the respondent in M.C.No.452/2018 on the file of VI Additional Principal Judge, Family Court, Bangalore has preferred this appeal.

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The appellant was the respondent and the respondent in this appeal was the petitioner in M.C.No.452/2018 before the trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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The marriage of the petitioner and the respondent was solemnized on 09.04.2007 at Sriveera Anjaneya Temple, Bullapura, Kagadanagara, Bhadravathi as per Hindu rites. Out of the said marriage, the couple were blessed with daughter and son, aged 9 years and 1 year respectively, as on the date of filing of the petition.

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The petitioner filed M.C.No.452/2018 against the respondent under Section 13(1)(ia) of the Hindu Marriage Act, 1955 seeking decree for dissolution of marriage on the grounds of cruelty. The petitioner alleged that the respondent was nagging him despite cooperation of him and family members and she was chatting with some person on mobile phone all the time. He further alleged that she was having adulterous life with their neighbour and the male child was born out of such illicit relationship, as by that time, he had undergone vasectomy. He claimed that he got DNA test of the child done, which was negative for his paternity of the child. Thus seeks decree for divorce.

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The trial Court holding that the service of notice on the respondent is sufficient, proceeded against her exparte. The petitioner was examined as PW.1 and on his behalf Exs.P1 to P6 were marked. The trial Court on hearing the petitioner by the impugned judgment and decree held that the allegations of cruelty and adultery went uncontroverted and were proved by Exs.P3 to P6 the Truth Lab Report and Pathology Reports respectively. Challenging the said judgment and decree the above appeal is filed by the wife.

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Smt.Kalpana.P.V., learned counsel for the appellant wife, reiterating the grounds of appeal submits that as per the petition itself, both respondent and the petitioner were living in the same house. The petitioner took bailiff to the house and obtained signature on the notice representing that the same is required for the purpose of changing the address in Aadhar Card and Election Identity Card and maintained the petition exparte. She further submits that exparte decree of divorce was outcome of fraud. She further submits that even in case of exparte decree, the trial Court is required to appreciate the evidence as allegations of adultery is serious matter and Exs.P3 to P6 were totally unreliable. Therefore, the impugned judgment and decree is liable to be set aside and the matter be remanded to the trial Court for an opportunity to hear her.

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Per contra, Smt.Sohani Holla, learned Counsel for the petitioner husband submits that the wife herself admits service of notice. She has not made out any grounds to set aside the exparte decree. Therefore the same cannot be set aside. She further submits that specific plea of the husband regarding cruelty and adultery were proved by Exs.P3 to P6 the lab report regarding DNA test and Pathology reports about his

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inability to produce sperms. Thus she seeks dismissal of the appeal.

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Considering the submissions of both sides and examining the materials on record, the point that arises for consideration is “ Whether the impugned judgment and decree of divorce is sustainable in law”?

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ANALYSIS

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There is no dispute between the parties regarding their marriage on 09.04.2007 and having two children. The petitioner claims that second child i.e. son was not born to him. It is material to note that as per the address furnished in the petition, both the petitioner and the respondent were living in the same address. The trial Court records shows that the trial Court issued notice to the respondent through RPAD. However, the petitioner did not pay process fee for issuing notice through RPAD. The endorsement in the order sheet of the trial Court on 03.04.2018 shows that the notice was served on the respondent personally. The trial Court records contained process issued through Court and bailiff and endorsement on the same shows that he has served the notice on the person

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shown by the petitioner himself. Why and how, despite the Court issuing notice by RPAD, notice was issued by the office of the trial Court through bailiff is not forthcoming. There is no explanation on the part of the petitioner over the same. That probabilizes the contention of the respondent that there was something fishy on serving notice on her.

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The decree of divorce being judgment in rem , even if the respondent does not contest the matter, the petitioner has to prove the same by acceptable evidence. Admittedly, the respondent begot two children during subsistence of the marriage. Under the circumstances, Section 112 of the Indian Evidence Act, 1872 (‘the Evidence Act’ for short) confers conclusive proof of legitimacy to the son of the couple. In such cases, Section 4 of the Evidence Act, bars the Court from accepting oral evidence to disprove the paternity of the child, unless the petitioner/husband satisfies that he had no access to the respondent wife in conjugal relationship. It was for him to show that he had no access to the respondent in their conjugal relationship.

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The trial Court relied on Ex.P3, DNA test report, but there was nothing to show who collected sample from the child

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and where it was collected. There was nothing to show that sample was that of the child only. Similarly, though the petitioner contended that he underwent vasectomy surgery, therefore he was incapable to produce the sperms, no documents in proof of such vasectomy surgery was produced. Therefore Exs.P3 to P6 were not proved in accordance with law. The authors of those documents were not examined. Therefore the trial Court committed serious error in holding that by those documents the child being illegitimate one was proved. The couple were married for about 12 years. By that time, the petition was filed. There were having two children. The trial Court ought to have applied its mind in discrepancy of service of notice contrary to its order. Under the circumstances, the respondent wife cannot be thrown out of matrimonial life without opportunity of hearing, more particularly, when serious stigmatic allegations of adultery were made. Therefore the impugned judgment and decree is liable to be set aside and 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 judgment and decree of divorce dated 19.06.2019 in M.C.No.452/2018 passed by VI Additional Principal Judge, Family Court, Bengaluru is hereby set aside and the matter is remanded to the trial Court for fresh consideration.

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To avoid further delay, the parties are hereby directed to appear before the trial Court on 09.07.2024 without any further notice.

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On such appearance, the trial Court shall give opportunity to the appellant-wife to file her statement of objections. Thereafter, the trial Court shall give reasonable opportunity to both the parties and dispose of the matter as expeditiously as possible at any rate within six months from the date of appearance of the parties.

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If any of the parties fail to appear, the trial Court shall proceed in accordance with law.

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Transmit the records to the trial Court.

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The Court places on record its appreciation for the able assistance rendered by Smt. Kalpana P.V and Smt. Sohani

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NC: 2024:KHC:19774-DB MFA No.2366/2020

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Holla, learned Standing Counsel for the High Court Legal

Services Committee.

Sd/JUDGE

Sd/JUDGE

BSR/KSR List No.: 1 Sl No.: 51

Smt. Nagarathna S.S. @ Hongamma v. Sri. Prakasha P

Case brief

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Smt. Nagarathna S.S. @ Hongamma v. Sri. Prakasha P

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