Allowed

Smt Roshani Mangalore v. Sri N Vipin Suvarna

Karnataka HC26 Jun 2024MFA/3385/2017

Case brief

AI extract

What is this about?

Wife appealed against an exparte divorce decree obtained by publication in a Bengaluru newspaper though the husband knew she lived in the UK. Holding this amounted to fraud on the court vitiating proceedings, and distinguishing infructuousness claims based on remarriage, the High Court set aside the decree and remanded for fresh hearing.

What did the court decide?

Impugned judgment and decree dated 23.07.2007 in M.C.No.745/2003 set aside with costs; matter remanded to Family Court for fresh consideration.

Smt Roshani Mangalore Vs Sri N Vipin Suvarna — Matrimonial and Divorce | Karnataka HC (2024)

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NC: 2024:KHC:23566-DB MFA No.3385/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26^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.3385/2017 (FC)

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BETWEEN:

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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SMT. ROSHANI MANGALORE W/O N. VIIPIN SUVARNA AGED ABOUT 56 YEARS NO.12, MILLWOOD COURT NEW ROAD, CHATHAM ME44BD UNITED KINGDOM.

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NOW TEMPORARILY RESIDING AT PADMAPPA COMPOUND PANDESHWAR CROSS ROAD MANGALORE - 575001.

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…APPELLANT

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(BY SRI. HEMANTH KUMAR D, ADV.,)

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AND:

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SRI. N. VIPIN SUVARNA S/O LATE N.R. SUVARNA AGED ABOUT 62 YEARS R/AT NO.201, SCION WINDFLOWER NO 2 AC - 716-718 IIND A CROSS 7TH MAIN ROAD, HRBR LAYOUT 1ST BLOCK ,KALYAN NAGAR BANGALORE - 560043.

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…RESPONDENT

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(BY SRI. P.P. HEGDE, SR. COUNSEL FOR SRI. VENKATESH SOMAREDDI, ADV.,)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 23.07.2007 PASSED IN M.C.NO.745/2003 ON THE FILE OF THE IST ADDITIONAL PRINCPAL JUDGE, FAMILY COURT, BENGALURU CITY, ALLOWING THE PETITION FILED UNDER SECTION 13(1) OF THE HINDU MARRIAGE ACT, FOR DISSOLUTION OF MARRIAGE.

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

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JUDGMENT

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Challenging the judgment and decree of divorce granted against her, the respondent in M.C.No.745/2003 on the file of I Additional Principal Judge, Family Court, Bangalore City, has preferred this appeal.

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The appellant was the respondent and the respondent was the petitioner in M.C.No.745/2003 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 04.05.1983 in Mangaluru. The parties are Hindus and are governed by the Hindu Marriage Act, 1955 (for short, 'the Act'). In their conjugal life, the couple are blessed with daughter by name Varsha on 27.05.1984. The petitioner

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was working as a Bank Manager. The respondent pursued her education in M.Phil., in Economics and completed the same in the year 1989. On Commonwealth scholarship, she went to UK for her studies in Ph.D in Economics. Later she got employment and the petitioner and the child joined the respondent in Yorkshire and lived for about six months. Then he returned to India, the child continued in the custody of the respondent. Later, the child came back to India to pursue education. Upto 1995, the child continued with the mother of the petitioner and was pursuing the education. Thereafter, the respondent took the child with her.

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Petitioner filed M.C.No.745/2003 claiming that since November 1997, respondent stopped responding to his letters and communication and withdrew from his society without reasonable cause. His request through his advocate to the High Commission of India, India House, London, to trace the respondent and the child went in vain. He sought decree of divorce on the ground of desertion. Notice on respondent was served by paper publication and she was set exparte. In support of the case of the petitioner, petitioner got himself examined as PW-1 and got marked Exs.P-1 to P-5.

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The trial Court on hearing the petitioner, allowed the petition and granted decree of divorce. The trial Court held that the petitioner's testimony that the respondent deserted him since 1997 and his attempts to trace her through the High Commission of India, London, were uncontroverted, thereby the ground of desertion is proved.

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The respondent has challenged the said decree in the above appeal claiming that the petitioner without duly serving the petition notice on her, managed to take notice by paper publication and managed to get the exparte decree, etc.

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Sri.Hemanth Kumar D., learned counsel for the respondent-wife, reiterating the grounds of appeal, submits that the petitioner despite being aware that respondent is not in India, to secure exparte decree, took notice by publication in newspaper which was in circulation only in Karnataka. He further submits that though the petitioner furnished both the addresses, initially he took notice to the address of the respondent in UK schemingly got published the notice in local newspaper. The respondent came to know about the decree only when the same was produced in Crl.Misc.42/2016 filed by

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the respondent and her daughter under Section 125 of Cr.P.C. He submits that considering the ground of fraud played on the wife, this Court has already condoned delay of 3530 days in filing the appeal. Therefore, this appeal also requires to be allowed and she be given opportunity.

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Sri.P.P.Hegde, learned Senior counsel appearing for Sri.Venkatesh Somareddi, advocate on record for the petitionerhusband, submits that the respondent-wife herself in Crl.Misc.Nos.42/2016 and 116/2016, the proceedings under Section 125 Cr.P.C. and Protection of Women from Domestic Violence Act, 2005, respectively and the complaint filed by her in PCR No.26/2016, has given Mangaluru address claiming to be resident of Mangaluru. He claims that respondent-wife had no inclination to lead conjugal life, she did not even challenge the impugned decree within time. After three years of decree, on 18.12.2011 the petitioner has married another woman by name V.Saraswati. The appeal is filed in the year 2017. By such second marriage, this appeal has become infructuous and is liable to be dismissed on that ground alone. On the same ground, the petitioner-husband has filed I.A.No.2/2022 in this appeal for dismissal of the appeal.

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Sri.P.P.Hegde, learned Senior counsel submits that Crl.Misc.Nos.42/2016 and 116/2016 both were dismissed holding that the respondent-wife's allegations that the husband has subjected her to mental, physical and economical violence are not proved and those findings have attained finality. In support of his submission, he relies on the following judgments:

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i. Krishnaveni Rai vs. Pankaj Rai and another¹

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ii. Lemhmber Singh vs. Kuldeep Kaur²

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iii. Seema Devi vs. Ranjit Kumar Bhagat³

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On considering the submissions and examining the material on record, the point that arises for determination is

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“ Whether the impugned judgment and decree of divorce granted by the trial Court is sustainable in law”?

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ANALYSIS

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The parties are not at dispute that they were married on 04.05.1983 and they begot a daughter on 27.05.1984. It is also not disputed that with the consent of the petitioner himself, wife moved to UK for higher studies and she

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1 (2020) 11 SCC 253

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2 2014 SCC OnLine P&H 25061

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3 2023 SCC OnLine Del 2257

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got employed there. According to him, from November 1997 the respondent-wife deserted him and she stopped replying to his letters and informing about her whereabouts. It is also not disputed that their daughter during her minority was staying with respondent and thereafter she was staying with the mother of the petitioner. Despite that, the petitioner in his petition gave her Mangaluru address and UK address also.

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Initially he took notice to her UK address shown in

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the cause title of the petition and that was returned with the endorsement that she is not residing in the said address. Later, in Ex.P-4 his own letter addressed to the High Commission of India in London, UK, he claimed that his wife was residing at 23, West Gate Close, Canter berry, Kent CT 28JH (the same address is shown in the petition) and thereafter she is not reachable in the said address and on phone, therefore, he requested the said authorities to trace the address and inform him. That itself shows that petitioner was aware that she is not available in the said address. Despite that he took notice to the same address, which was returned un-served with the endorsement that she is not found in that address. Thereafter, he took notice to her by

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way of publication in Hindu English newspaper, Bengaluru edition on 28.12.2006.

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At one breath petitioner claims that respondent was residing in UK and in next breath he claims that she was residing in Mangaluru. Admittedly, the mother of the respondent-wife was residing in Mangaluru. If notice by way of paper publication in any local newspapers which are in circulation in Mangaluru town were taken at least she could have come to know about the proceedings. Therefore, it becomes clear that petitioner-husband with full knowledge that the respondent-wife is not in India, suppressing the said fact, took notice by publication on paper of Bengaluru edition and managed to get a decree of divorce which amounts to abuse of the process of the Court. That also amounts to playing fraud on the Court.

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The main contention of Sri.P.P.Hegde, learned Senior Counsel is that the appeal itself is not maintainable having rendered infructuous due to petitioner's second marriage and delay in filing the appeal. He submits that the petitioner married after the appeal period, therefore, such marriage is

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lawful and by such marriage, the appeal has become infructuous. The perusal of the judgments relied on by him show that in all those cases the appellants therein had contested the matters before the trial Court and despite that, had not preferred the appeal in time, therefore it was held that the appeals have become infructuous. Therefore, the said judgments are not applicable. Further, in this appeal, we are not called upon to decide the validity of the second marriage of the petitioner, we have to answer whether the impugned judgment and decree is sustainable?.

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It is evident that the petitioner suppressing the fact of respondent living in UK, managed to get the notice published in the newspaper of Bengaluru edition. Secondly, Ex.P-4 shows that he was aware that respondent-wife was not available in the UK address shown in the petition. That goes to show that he has played fraud on the Court which vitiates the entire proceedings and the impugned decree.

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So far as the dismissal of Crl.Misc.Nos.42/2016 & 116/2016, according to Sri.Hemanth Kumar D., learned counsel, Crl.Mis.42/2016 was dismissed for non-prosecution. He submits

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that the daughter of the couple is suffering from some mental health issue and due to her old age, the respondent also could not get further employment. Being unable to maintain herself and her daughter, have taken shelter under with Social Security scheme since August 2019, they are surviving on the advance Social Security payment provided by the Government. To that effect she has filed affidavit and document. He claims that due to such condition she could not prosecute Crl.Mis.No.42/2016 & effectively prosecute Crl.Mis.No.116/2016 or prefer appeal. Moreover, in those cases, it was contended that the petitioner has subjected the respondent to various kinds of abuse and he has failed and neglected to maintain his wife and daughter. This Court accepting such submissions, by order dated 15.06.2022, has awarded interim alimony of Rs.40,000/- per month for the appellant and her unmarried daughter. The said order has attained finality.

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Further, it is also to be noted that there was 3530 days delay in filing the appeal. To explain the delay, the wife had taken the same contention of the petitioner obtaining the exparte decree by playing fraud in service of notice. By way of objections to the said applications, the petitioner-husband has

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taken the same contentions of his remarriage, which was claimed to be valid due to delay in filing the appeal and appeal being not maintainable. This Court, by detailed order dated 18.12.2019, rejected those contentions, allowed the application and condoned the delay. The petitioner did not challenge that order. The Hon'ble Supreme Court in para 34 of the judgment in Erach Boman Khavar vs. Tukaram Shridhar Bhat and another⁴ has held that it is well settled law that the principle of resjudicata is applicable between two stages of the same litigation, if the question involved has been decided at the earlier stage of the same litigation.

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18. Similarly in paragraph No.10 of the judgment in S.Ramachandra Rao vs. S.Nagabhushana Rao and others⁵ , the

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Hon'ble Supreme Court has held as follows:

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"10. For what has been noticed and discussed in the preceding paragraphs, it remains hardly a matter of doubt that the doctrine of res judicata is fundamental to every well regulated system of jurisprudence, for being founded on the consideration of public policy that a judicial decision must be accepted as correct and that no person should be vexed twice with the same kind of litigation. This doctrine of res judicata is attracted not only in separate subsequent proceedings but also at the subsequent stage of the same

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4 AIR 2014 SC 544

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5 AIR 2022 SC 5317

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proceedings. Moreover, a binding decision cannot lightly be ignored and even an erroneous decision remains binding on the parties to the same litigation and concerning the same issue, if rendered by a Court of competent jurisdiction. Such a binding decision cannot be ignored even on the principle of per incuriam because that principle applies to the precedents and not to the doctrine of res judicata."

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(emphasis supplied)

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In the light of the aforesaid judgments and the fact of this Court condoning the delay and admitting the matter rejecting such contention of the petitioner, the said contention does not sustain. It is material to note that the petitioner did not bother to take care of the daughter for all these years and now he claims that by virtue of his second marriage, appeal has become infructuous. It is submitted that the petitioner has not even paid interim alimony of Rs.40,000/- per month granted by this Court in this case. Under such circumstances, if at all, the appeal has to be dismissed only on the ground of his second marriage, that not only amounts to failure of justice but incentivizing the party who secures a decree by abusing the process of the Court and playing fraud. Further, the trial Court also should have been serious when a 24 years old marriage with a daughter aged 23 years, was sought to be broken. Therefore , it is necessary to give opportunity to the appellant-

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wife to contest the petition as she cannot be thrown out of the marriage without hearing. Therefore, it is necessary to set aside the order and remand the matter for fresh consideration after giving opportunity to both the parties.

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The trial Court records themselves show that the notice taken by the petitioner at UK address given in the petition was not served and he himself claimed that the respondent was not traceable in the said address. Despite that, the Court proceeded to hold that the service is sufficient, which was contrary to the petitioner's own document Ex.P-4. On that count also the appeal succeeds. Hence, the following:

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ORDER

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The appeal is allowed with costs.

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The impugned judgment and decree dated 23.07.2007 in M.C.No.745/2003 on the file of I Additional Principal Judge, Family Court, Bengaluru City, is hereby set aside. The matter is remanded to the trial Court for fresh consideration.

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The parties shall appear before the trial Court without further notice on 12.08.2024, either personally or through their representative.

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The petitioner shall deposit the arrears of interim alimony awarded by this Court on the date of his appearance. Similarly the respondent-wife shall file her statement of objections on the date of appearance.

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On such appearance, 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 parties.

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

Sd/JUDGE

Sd/JUDGE

BSR

List No.: 1 Sl No.: 23

Smt Roshani Mangalore v. Sri N Vipin Suvarna

Case brief

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Smt Roshani Mangalore v. Sri N Vipin Suvarna

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