B.P. Pallavi vs D.M. Umesh

N.K. Patil, J.—This appeal arises out of the judgment and order dated 8th June 2012, passed in M.C. No. 6/2011, by the Senior Civil Judge & JMFC, K.R. Nagar, allowing the petition filed by the respondent under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights and for cost.

Brief facts of the case as stated in the petition are that, the appellant is the legally wedded wife of respondent and their marriage took place on 26-10-2009, at Mahavidya Ganapathi Kalyana Mantapa in K.R. Nagara Town, as per Hindu customs. After marriage, the appellant did not stay with the respondent peacefully and happily even for a week. From the beginning, the appellant used to pick up quarrel with the respondent and his family members without any valid reason and threaten the respondent stating that she would commit suicide. Accordingly, on one occasion, she had even swallowed sleeping tablets to commit suicide. Immediately she was taken to Hospital and saved. Within a week after the said incident, she had consumed D.D.T. powder and she was again saved. After about 1-1 1/2 months of incident, she had tried to commit suicide by pouring kerosene on her body. After the said incident, she was taken to her parents place. After staying for about three months in her parents house, when her relatives were bringing her to the respondent''s house, on the way, she got down from the Bus and went away to her parents house again. The appellant without any reason deserted the respondent and all the efforts made by the respondent''s side to bring her back did not yield any fruits. The appellant, forgetting her responsibilities and duties is residing with her parents. Therefore, there was no other option for the respondent but to get issued a legal notice on 18/11/2010, calling upon the appellant to come and join his company. She neither complied the notice nor replied to the same. Hence, the respondent filed a petition under Section 9 of the Hindu Marriage Act, 1956, for restitution of conjugal rights.

Though, the appellant has appeared through her counsel before the Court below, she has not chosen to file any objection. The reconciliation held between the parties also failed. Therefore, the matter was posted for evidence. The respondent, in order to prove his case, got examined himself as PW. 1 on affidavit and got marked the documents as Exs.P.1 to P.3. There is no evidence from the appellant''s side.

The Court below, after hearing the counsel for the respondent, allowed the petition, holding that the appellant, without any reasonable cause or excuse has withdrawn from the company of the respondent and accordingly, directed the appellant to restitute conjugal rights with the respondent to lead marital life as a dutiful wife within two months from the date of the said order. Being aggrieved by the said judgment and order passed by the Court below, the appellant is before this Court seeking appropriate reliefs as stated supra.

The submission of the learned counsel appearing for appellant at the outset is that, the judgment and order passed by Court below is in gross violation of the principles of natural justice inasmuch as the appellant has not been heard while passing the final order and the entire proceedings is concluded in a hurried manner, without affording reasonable opportunity of hearing to the appellant.

He further submitted that since the appellant is not well acquainted with the legal proceedings, taking undue advantage of the situation, without any intimation to the appellant, the impugned judgment and order has been passed by the Court below, after hearing the counsel for respondent alone. To substantiate the said submission he has taken us through the order sheet maintained by the Court below, which is available in the original records produced before us and submitted that the matter was referred for reconciliation and it failed on 13-03-2012. Thereafter on 23-03-2012, when the case was posted, the respondent got marked Exs.P1 to P3 and thereafter within two hearings, the entire proceedings is concluded without hearing the appellant and without following due procedure and directing the appellant to restitute conjugal rights with the respondent to lead the marital life. Therefore, he submitted that the impugned judgment and order passed by Court below is liable to be set aside and the matter be remanded back to the Court below for reconsideration, enabling the appellant to lead evidence and to cross examine the witnesses.

Respondent is served and unrepresented before this Court.

After careful consideration of the submission of the learned counsel appearing for appellant and after microscopic evaluation of the original records available on file including the order sheet maintained by the Court below and also the impugned judgment and order passed by it, it is manifest on the face of the same that the reasoning given by the Court below for allowing the petition filed by respondent and directing the appellant to restitute conjugal rights cannot be sustained and is liable to be vitiated, for the simple reason that the same is passed without affording reasonable opportunity of hearing to the appellant and without following due procedure. As rightly pointed out by the learned counsel appearing for appellant, the entire proceedings is concluded in a hurried manner. It can be seen from the order sheet maintained by the Court below, that the matter was referred to reconciliation and it failed. Once the reconciliation failed, the entire proceedings is concluded in a hurried manner. If the counsel for the appellant was not present, then, the Court below ought to posted the matter for filing objections or issued notice to appellant and secured the presence and thereafter proceeded with the matter after hearing both the parties. Admittedly, the said exercise is not done by the Court below. Considering the fact that it is a matrimonial case between the parties, the Court below ought not to have come to the impugned conclusion without hearing the other side. Such orders cannot be sustained and therefore, the impugned judgment and order passed by Court below is liable to be set aside at the threshold.

Therefore, without expressing any opinion on the merits or demerits of the case, it would suffice for this Court, to safeguard the interest of both the parties, if the impugned judgment and order is set aside and the matter is remanded back to Court below for reconsideration afresh after hearing both the parties.

Having regard to the facts and circumstances of the case, the appeal filed by appellant is allowed.

"The impugned judgment and order dated 8th June 2012, passed in M.C. No.6/2011, by the Senior Civil Judge & JMFC, K.R. Nagar, is hereby set aside;

The matter stands remitted back to the Court below for reconsideration afresh, in accordance with law, after affording reasonable opportunity of hearing to both the parties, as expeditiously as possible.

The appellant is hereby directed to appear before the Court below, personally or through her counsel on 08-12-2014 at 11:00 A.M., without awaiting notice from the Court below and permitted to file objections on the same day and collect the further date of hearing;

However, the Court below is hereby directed to issue notice to respondent and proceed further in accordance with law and decide the matter after affording reasonable opportunity of hearing to both the parties;

Registry is directed to transmit the entire records of the Court below to the jurisdictional Court, immediately."