Allowed

Smt.Meenabai v. Sri.R.K.Sathish Kumar

Karnataka HC19 Jan 2024MFA/310/2021

Case brief

AI extract

What is this about?

High Court allowed this appeal against a divorce decree dismissing the wife's failure to present evidence as excused by the pandemic and Court's hasty conclusion. The judgment was set aside and the matter remanded with a direction to give the respondent further opportunities.

What did the court decide?

Impugned judgment and decree set aside; case remanded to Family Court to give one more opportunity for cross-examination and to lead evidence before deciding afresh.

Smt.Meenabai Vs Sri.R.K.Sathish Kumar — Matrimonial and Divorce | Karnataka HC (2024)

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NC: 2024:KHC:2632-DB MFA No. 310 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF JANUARY, 2024

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PRESENT

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 310 OF 2021 (FC)

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BETWEEN:

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Smt.Meenabai

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W/o R K Sathish Kumar, Aged About 47 years, R/At No.334, Church Road, Subhashnagar, Ward No.17, K R Nagar, Mysore-45.

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…Appellant

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(By Sri. Pratheep K C., Advocate)

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AND:

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Digitally signed by VEENA KUMARI B Location: High Court of Karnataka

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Sri.R.K.Sathish Kumar S/o Late Ramakrishna Rao, Aged About 49 years R/At No.2, Ist Cross, Chamundi Hill Road, JC Nagar, Mysuru-54

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…Respondent

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(By Smt. Apeksha D., Advocate)

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This Miscellaneous First Appeal is filed under Section 19(1) of Family Court Act, 1955 read with Section 28 of Hindu Marriage Act praying to call for the records in

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M.C.No.205/2018, on the file of the C/c Principal Judge, Family Court, at Mysuru, peruse the same, allow the appeal and set aside the judgment and decree dated 25^th November 2020 passed by the C/c Principal Judge, Family Court, Mysuru, together with costs and pass such other order/s as this Hon'ble Court deem fit to pass on the facts and in the circumstances of the case, in the interest of justice and equity.

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This Miscellaneous First Appeal coming on for Hearing through Physical Hearing/Video Conferencing this day, Dr.H.B.Prabhakara Sastry, J., delivered the following:

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JUDGMENT

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The present appellant is said to be the wife of the present respondent, whose marriage was solemnised on 25.01.2007 as per the Hindu rites and customs at K.R.Nagara. After leading the marital life for some time, during which period, they got a male child born to them, the present respondent/husband instituted a petition against his wife (appellant herein) under Section 13 (1)(ia) and Section 13 (1)(ib) of Hindu Marriage Act, 1955 (hereinafter for brevity referred to as Hindu Marriage Act'), seeking dissolution of their marriage in M.C.No.205/2018, in the Court of learned C/c.Principal Family Judge, Family Court, Mysuru, (hereinafter for brevity referred to as Family Court').

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NC: 2024:KHC:2632-DB MFA No. 310 of 2021

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The present appellant, as a respondent in the said petition, initially contested the matter by filing her statement of objections denying the averment that she subjected her husband to cruelty and deserted him. Later, it was only the husband, who was the petitioner in the Family Court, led his evidence as PW-1 and got marked the documents from Exs.P-1 to P-8. The respondent therein, who is the present appellant, failed to crossexamine PW-1. She did not even led evidence on her side. As such, taking that the respondent before it (the appellant herein) has neither cross-examined PW-1 nor led evidence from her side, the Family Court proceeded to hear the final arguments and pronounced the impugned judgment on 25.11.2020, allowing the petition filed by the present respondent and ordering dissolution of marriage dated 25.01.2007 solemnised between the parties. Being aggrieved by the said judgment and decree, the respondent in the Family Court i.e., the wife has preferred the present appeal.

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The respondent herein is represented by his

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learned counsel.

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Records from the Family Court pertaining to the matter were called for and the same are placed before the Court.

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Family Court.

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Heard the arguments of learned counsels from both side and perused the materials placed before this Court, including memorandum of appeal, impugned order and also the records of the Family Court.

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Learned counsel for the appellant in his very brief argument submitted that the only contention of the wife is that she was not given a reasonable opportunity to cross-examine PW-1 and to lead her evidence. Since recording of the evidence took place during the period of COVID, it was not possible for the present appellant-wife

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to appear before the Court along with her counsel and to

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cross-examine PW-1 and to lead her evidence. Further, the Family Court in a hasty manner and without even giving reasonable opportunity to the respondent before it, has proceeded to pronounce the impugned judgment. With this, he prays for remanding the matter by setting aside the impugned judgment and decree.

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Per contra, learned counsel for the present respondent/husband in her argument submitted that the respondent before the Family Court, who is the appellant herein, was given sufficient opportunities by the Family Court both to cross-examine PW-1, as well to lead evidence from her side, however, for the reasons best known to her, she did not choose to lead any evidence from her side. Further, the parties are living separately for more than eight years. Under the said circumstances, there is no point in remanding the matter, except dismissing the appeal.

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As observed above, the petition averments made

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by the husband before the Family Court alleging cruelty

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NC: 2024:KHC:2632-DB MFA No. 310 of 2021

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and harassment practiced upon him by his wife has been categorically and specifically denied by the wife (appellant herein) in her statement of objections. It is thereafter, the matter was slated for recording of evidence of the parties. In the said process, though the husband, as a petitioner in

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the Family Court, has initially led his examination-in-chief, however, after completion of his examination-in-chief, he filed few interlocutory applications along with documents, which were heard and came to be allowed and he was subjected to lead his further evidence in the matter. Thus, to complete his evidence, the petitioner before the Family Court (respondent herein) had taken considerable time. Thus, the matter was slated for the cross-examination of PW-1 under the order dated 02.03.2020 and matter was posted to 06.03.2020.

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A perusal of the order sheet of the Family Court would go to show that on 06.03.2020, the petitioner (PW-1) had remained absent. As such, at the request of his learned counsel, the matter was adjourned to

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24.03.2020. However, when the matter was taken up on 24.03.2020, the Notification issued by this Court due to Carona Pandemic prevailing at that particular point of time was in force. As such, by virtue of the said Notification of this High Court dated 23.03.2020, the Family Court adjourned the matter periodically from 24.03.2020 to 16.04.2020, from then to 05.05.2020 and thereafter to 26.05.2020 and then to 08.06.2020 and after that, to 26.06.2020, 16.07.2020 and to 14.08.2020. On 14.08.2020, the matter was adjourned to 14.09.2020 for cross-examination of PW-1.

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When the matter was taken up on 14.09.2020, the Standard Operating Procedure prescribed by this High Court was in vogue, as such, urgent matters were permitted to be proceeded with and the evidence could have been recorded through Video Conferencing. It is observing the same, the Family Court in its order dated 14.09.2020, adjourned the matter as finally for cross-examination of PW-1 to 08.10.2020. On 08.10.2020

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also, the matter could not be proceeded with and the learned counsels were permitted to conduct the evidence through Video Conference by adjourning the matter to 21.10.2020 for cross-examination of PW-1. However, on 21.10.2020, PW-1 had remained absent, as such, he did not tender himself for cross-examination. Hence, as a last chance, the matter was adjourned to 07.11.2020. Though PW-1 was present on 07.11.2020, however, the respondent had remained absent. On that day, the Family Court took the cross-examination of PW-1 as `Nil' and posted the matter for respondent's evidence to be recorded on 23.11.2020.

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On 23.11.2020, even on which date also, the Standard Operating Procedure was in force, noticing that the respondent had remained absent, the evidence from the respondent's side was taken as `Nil'. On the very same day, the arguments were also taken as heard and the matter was reserved for judgment and to be

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pronounced on 25.11.2020. Consequently, the impugned judgment came to be passed on 25.11.2020.

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The above chronology of events would go to show that, initially for considerable time, the matter could not be proceeded with due to Carona Pandemic vogue and due to which, the regular and routine work of the Court of recording the evidence could not be taken up. However, in view of the Standard Operating Procedure, to some extent the recording of the evidence in some urgent matters were allowed. In the said process, no doubt, the Family Court had granted opportunities of about three times to the parties to lead their evidence, particularly, to the respondent herein/wife to cross-examine PW-1. However,

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on those dates of hearing also, PW-1 himself had remained absent compelling the Court to adjourn the matter for his cross-examination from the other side.

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Thus, after his absence on 21.10.2020, PW-1 appeared before the Court only on 07.11.2020, on which day, observing the absence of the respondent, the

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Family Court proceeded to take the cross-examination of PW-1 as `Nil'.

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In our opinion, when for several months, the matter could not be taken up by the Family Court and went on adjourning the matter due to Carona Pandemic prevailing at that time, and all of a sudden, when the recording of evidence was permitted through Video Conference, the Family Court should have been restrained from showing hastiness in taking the cross-examination of PW-1 as ` Nil' on the very first day of his appearance on 07.11.2020. The Family Court ought to have given another opportunity to the respondent before it to crossexamine PW-1.

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Similarly, on the very next day after 07.11.2020, which was on 23.11.2020 also, the Family Court shown hurriedness in taking the respondent's evidence also as `Nil' by observing that, on that particular day, the respondent had remained absent. It did not even gave a single opportunity to the respondent to lead at least her

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evidence from her side or to make any application to recall PW-1 for his cross-examination. On the contrary, even in the absence of the respondent, it proceeded to take the argument as heard and hurried to pronounce the judgment within two days thereafter, resulting in the impugned judgment coming out on 25.11.2020.

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Thus, we are of the view that the Family Court has shown unnecessary hastiness within a span of three weeks in closing recording of the evidence, hearing the arguments and pronouncing the impugned judgment, which under the above circumstances, was not warranted. The same has consequently resulted in the present appellant (wife) being deprived with a reasonable opportunity of cross-examining PW-1 and leading evidence from her side. As such, the impugned judgment warrants interference at the hands of this Court.

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Accordingly, we proceed to pass the following :

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NC: 2024:KHC:2632-DB MFA No. 310 of 2021

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ORDER

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[i] The Appeal filed by the appellant is allowed.

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[ii] The impugned judgment and decree passed by the learned C/c.Principal Family Judge, Family Court, Mysuru, in M.C.No.205/2018, dated 25.11.2020, stands set aside.

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[iii] M.C.No.205/2018 stands remanded to

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the Family Court, Mysuru, with a direction to the Family Court to give one more opportunity to the respondent before it to cross-examine PW-1 and to lead her evidence in the matter. It is thereafter, after hearing the parties who address their arguments in the matter, the Family Court to decide the matter afresh and in accordance with law.

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However, considering the fact that the M.C. petition

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was of the year 2018 and sufficient time has already been lapsed and in order to avoid any further delay, both side

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parties are directed to appear before the Family Court, Mysuru, on 12.02.2024 at 11.00 a.m. without anticipating

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any fresh notice or summons from the Family Court in that regard and participate in the proceedings before the Family Court and proceed with the matter by avoiding taking any further adjournment in the matter.

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The early disposal of the matter by the Family Court, but, not later than four months from 12.02.2024, is highly appreciated.

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Draw decree accordingly.

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The registry to transmit a copy of this judgment

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along with Family Court records to the concerned Family Court immediately.

Sd/-

JUDGE

Sd/JUDGE

bk : List No.: 1 Sl No.: 40

Smt.Meenabai v. Sri.R.K.Sathish Kumar

Case brief

What is this about?

What did the court decide?

Smt.Meenabai v. Sri.R.K.Sathish Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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