Smt Rupa Vs Sri v Manjunath

THIS MFA FILED UNDER SECTION 19(1) OF FC ACT AGAINST THE JUDGMENT AND DECREE DATED 10.01.2019 PASSED IN MC No.44427/2013 ON THE FILE OF THE I ADDITIONAL PRL. JUDGE, FAMILY COURT, BENGALURU,

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NC: 2025:KHC:51124-DB MFA No. 3591 of 2019

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HC-KAR

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PARTLY ALLOWING THE PETITION FILED UNDER SECTION 13(1)(i-b) OF THE HINDU MARRIAGE ACT.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI and

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HON'BLE MR. JUSTICE K. V. ARAVIND

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE JAYANT BANERJI)

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Heard learned counsel for the appellant.

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This appeal has been filed challenging the judgment and decree dated 10.01.2019 passed by the I Additional Principal Judge, Family Court at Bengaluru¹ , in M.C. No.4427/2013.

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2.1. By means of the aforesaid judgment and decree, the

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petition filed under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955² , has been partly allowed to the extent of

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grant of decree of divorce under Section 13(1)(i-b) of the Act. The Family Court has observed that the petitioner-husband got himself examined as PW.1 and Exs.P.1 and P.2 are marked in his evidence. However, PW.1 has not been cross-examined by the respondent-wife. Even she has not produced any evidence

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1 Family Court

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2 Act

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HC-KAR

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on her behalf. Accordingly, the following points were framed

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for consideration;

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" (1) Whether the petitioner/husband is entitled for dissolution of his marriage contracted with the respondent as prayed by him U/sec.13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955?

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(2) What order? "

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The findings of the Family Court are as follows;

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" Point No.1:"Partly in the affirmative."

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Point No.2:"As per final order "

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As far as the aspect of cruelty is concerned, the Family Court held that it was not proved. However, it was specifically pleaded and proved by the petitioner-husband that the respondent-wife had left the matrimonial home since past 11 years i.e. since 2002 by taking with her two minor children and living separately. On this basis, the petitioner-husband was

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held to be entitled for a decree of divorce on the ground of desertion by his wife.

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We have perused the record.

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Evidently the petitioner had filed the petition under

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Section 13(1)(i-a) and (i-b) of the Act. In the petition, he had

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stated that during the year 2002, the respondent had deserted

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the petitioner continuously for a period of more than 11 years.

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6.1. Objections were filed by the respondent-wife, in which,

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desertion was denied. On the other hand, it was alleged that the husband is residing with another lady namely Sridevi and it is he who has deserted the wife. It was submitted that even on

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date, the respondent is ready to join the petitioner's house and that she is having fond hope that he will join the respondent and her children and her only ambition is that, she has to be raised with her children in a dignified manner by the petitioner.

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The petitioner examined himself as PW.1 and submitted his examination-in-chief by way of affidavit. The contents of the petition were iterated by the petitioner.

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It appears from the perusal of the order sheet that the matrimonial case was filed on 28.10.2013. After issuance of notice, the respondent appeared and engaged an advocate, who has appeared on her behalf. The case continued before the Family Court and maintenance of Rs.10,000/- was granted to the respondent and her two minor daughters towards interim

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HC-KAR

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maintenance by order dated 22.09.2017. When the matter was

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listed on 08.11.2017, though the case was listed for crossexamination of PW.1, both PW.1 and his counsel were absent. The petitioner was not tendered for cross-examination hence, the Court directed that cross-examination of PW.1 is taken as 'nil' and the petitioner's side evidence was closed. Thereafter, on the same day, the Court directed that the respondent's evidence would be taken on 13.12.2017. On the next day, both the petitioner and the respondent were absent. Counsel for the petitioner was also absent. The case was adjourned on the request of counsel for the respondent. On subsequent dates, though the respondent was present, the petitioner and his counsel were absent. On 17.04.2018, both the petitioner and his counsel and the respondent and her counsel were absent and therefore, the respondent's evidence was taken as 'nil' and her side evidence was closed. On the next two dates, the petitioner and his counsel were absent, but the respondent and her counsel were present and time was prayed for arguments. Thereafter, the case was being adjourned from time-to-time. On 18.12.2018, both the side were directed to file written arguments. It was again noted that PW.1 was not

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HC-KAR

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cross-examined and the respondent has not produced any evidence. Thereafter, on 10.01.2019, the judgment was delivered.

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What is evident from the aforesaid is, on 08.11.2017 when the matter was listed, neither PW.1 nor his counsel were present. The respondent and her counsel were present. Therefore, the cross-examination of PW.1 was taken as 'nil' and the petitioner's side evidence was closed. Once it was recorded by the Family Court that the cross-examination of the PW.1 was taken as 'nil' on the ground that he was not tendered for cross-examination and his side evidence was closed, the examination-in-chief of the petitioner could not have been relied upon. The matter would have been different had the petitioner appeared for cross-examination, but was not crossexamined either due to the absence of the respondent or due to any other reason.

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In this view of the matter, we find that the Family Court had no evidence before it to record the finding that the wife had left the matrimonial home since past 11 years by taking her two minor children and living separately.

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HC-KAR

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In that view of the matter, the appeal succeeds and the decree is set aside. The matter is remanded to the Trial Court to take a decision afresh after affording the parties an opportunity to appear and lead evidence from the stage of cross-examination of the PW.1.

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The case is of the year 2013 and therefore, it is expected

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that the Family Court will proceed with the matter with expedition. Since the appellant-wife is represented in Court and is present through her counsel, the appellant shall appear before the Family Court on 08.01.2026. Thereafter, the notice shall be issued to the respondent by the Court.

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Let the Trial Court records be sent back.

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Sd/(JAYANT BANERJI) JUDGE

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Sd/(K. V. ARAVIND) JUDGE

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MV

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List No.: 1 Sl No.: 28

Smt Rupa v. Sri v Manjunath

Case brief

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Smt Rupa v. Sri v Manjunath

Case brief

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