A.S. Manudev vs H.K. Chinmayi

N.K. Patil, J.—1. This appeal by the petitioner/appellant herein is directed against the Judgment and Decree dated 17/11/2014, passed in M.C. No. 498/2013, by the II Additional Principal Judge, Family Court, Bangalore.

The petitioner/appellant herein has filed a petition before the Family Court against the respondent U/s. 13(1)(ia) of Hindu Marriage Act, seeking for dissolution of marriage, contending that, his marriage with respondent/wife was solemnized on 17.04.2011 at Sri. Subramanya Swamy Temple, Haluvalli, Kalasa Road, Moodigere Taluk as per their customs. It is further contended by him that respondent was not friendly and never cooperated with him she being a well qualified person. After the marriage, as the respondent was working at Malnad Engineer College, Hassan as a Lecturer she was staying with her parents and as he was working at CADES, Bangalore, he was staying in a single room accommodation. He requested her to join him immediately after the marriage, but she pleaded her inability and stated that after she gets a job in Bangalore she will resign her job at Hassan and then joint him. Inspite of making all his sincere efforts to lead marital life with respondent he failed to do so therefore, he appraised the same to the father and brother of the respondent. Instead of pacifying their relationship, they shouted against him that he has cheated them as he has no capacity to maintain their daughter. It is further contended that she was not in the habit of listening anybody nor cooperative nor negotiable nor she has prepared food and their relationship has strained and they have not lived happily after their marriage.

Further, it is contended by the petitioner/appellant that, he has intimated that he is going to Germany on Company''s work and she has not given any reply to the same nor she has taken care of his parents and on the contrary, she went to Hassan to her parents house directly from her workplace without intimating either to him or to his family members. She came back to matrimonial home on 27.10.2011 after the festival and on 30.10.2011 respondent abused him and his mother and unnecessary took the iron box into her hands which was hot and threatened to burn herself by putting the iron bon on her body and hand and she screamed by saying that she will create a scene and also give false complaint to the police. Thereafter, she called her father and brother, they came and beaten the appellant. Further, he contends that respondent has treated him with cruelty and it is impossible for him to live with her. Therefore, he prayed to allow the said petition.

Inspite of service of notice, respondent/wife has not appeared before the Family Court and she has been placed ex parte.

Before the Family Court, in order to prove his case, petitioner/appellant has examined himself as PW 1 and examined two witnesses as PWs. 2 and 3 and got marked three documents as per Exs. P1 to P3.

The Family Court, on the basis of the pleadings of the petitioner/appellant has raised two points for its consideration and after due deliberation and after considering the material on record, has answered Point No. 1 in the negative and as per final order dismissed the petition filed under Section 13(1)(ia) of Hindu Marriage Act Being aggrieved by the said judgment and decree passed by the Family Court, the petitioner/appellant has presented this appeal.

The submission of the learned counsel appearing for the petitioner/appellant, at the outset is that, the Family Court, contrary to the material available on record and inspite respondent remaining absent and treating her as ex parte and no counsel has represented her, has erred in notifying in the cause title that she is represented by one Smt. J. Mary Susheela. Further, she submits that many cases have been listed before the said Court and the learned Family Judge without considering the oral and documentary evidence available on file, has proceeded to dismiss the petition on the sole ground that, appellant has not produced any credible documents to establish that there is a quarrel between the husband and the wife and she in turn has threatened and her father and brother have beaten him The reasoning given by the Family Court for dismissing the petition is not sustainable and is liable to be set aside at threshold. Therefore, she prayed to allow the appeal.

Before this Court also, respondent was served and unrepresented.

After considering the submission made by learned counsel appearing for the appellant and after careful perusal of the impugned judgment and decree passed by the Family Court, it emerges that, the marriage between the parties was solemnized on 17.4.2011 at Sri. Subramanya Swamy Temple, Haluvalli, Kalasa road, Moodigere Taluk. No records are available to show that after the marriage they lived together happily having regard to the fact that both are well qualified and she is working as a Lecturer in Malnad Engineering college and thereafter, she left the said job and came to Bangalore. Further, it emerges that, in fact, appellant has examined himself as PW-1 and examined his parents as PWs 2 and 3 and also produced documents as per Exs. P1 to 3. It is significant to note that, except referring the evidence of PWs 1 to 3 and Ex. P1 to 3, there is no proper consideration of the same by the Family Court. The reasoning given by the Family Court for dismissing the petition is contrary to the evidence on record and there is no application of mind by the Presiding officer while dismissing the matter. Therefore, reasoning given in para-10 of the judgment for dismissing the petition cannot be sustained at any stretch of imagination and the same is liable to be set aside and matter requires reconsideration afresh by the Family Court. Therefore, without expressing any opinion on the merits and demerits of this case, to meet the ends of justice and to safeguard the interest of both the parties, it would suffice for this Court to issue appropriate directions to both the parties.

For the foregoing reasons, the appeal filed by the appellant is allowed.

The impugned Judgment and Decree dated 17/11/2014, passed in M.C. No. 498/2013, by the II Additional Principal Judge, Family Court, Bangalore, is hereby set aside and the matter stands remitted back to the jurisdictional Family Court with a direction to reconsider the same afresh and to pass appropriate orders in accordance with law, after affording reasonable opportunity of hearing to both the parties and dispose of the same as expeditiously as possible.

Further, the jurisdictional Family Court is directed to issue fresh notice to the respondent/wife and then proceed with the matter and dispose of the same in compliance of the above directions issued by this Court.

All the grounds urged by the appellant in this appeal are kept open.

The appellant is directed to appear before the jurisdictional Family Court, personally or through his counsel on 4th March 2016 at 11.00 a.m., to collect next date of hearing, without waiting for notice. Ordered accordingly.