Dr. R.G. Thirumangayarkarsi vs Mr. Gauthaman S.

Ravi Malimath, J.—The marriage of the appellant and respondent took place on 26.1.2011 at Bangalore. The wife used to pick up quarrel with him and left the matrimonial home on 12.5.2011 without any cause or reason. She did not come back to his house. That she did not even care about the petitioner and failed to show any love and affection. She used to ill-treat him and abuse him physically and mentally without any provocation and she used to abuse him. He noticed that she had an abnormal behavior and would wake up in the night and would threaten him. Under these circumstances he filed a petition u/s. 13(1)(ia) of Hindu Marriage Act, seeking for dissolution of the marriage. By the impugned order the same was allowed. Hence the present appeal by the wife. The learned counsel for the appellant contends that the impugned order is bad in law and liable to be set aside. That no adequate opportunity was granted to the appellant-wife to have her say in the matter. That the acknowledgement for having taken out court notice is itself doubtful. Hence he contends no adequate opportunity was granted to the wife to make out her case.

On the other hand, the learned counsel for the respondent contends that the Court Bailiff report would indicate that she refused to accept the summons. Therefore, opportunity has been granted to her.

On considering the material, we are of the considered view that an appropriate opportunity requires to be granted. We are of the considered view that the Trial Court has committed an error in holding the respondent-wife as ex-parte. Adequate opportunity should have been granted to the wife in order to have her say in the matter. Concerning the divorce between the husband and wife, the court should necessarily take appropriate care and caution to ensure that the respondent is adequately represented. Merely holding that the notice has been served or refused and thereafter proceeding with the matter and that too by granting a decree for divorce, without even hearing the respondent, in our considered view, would be unjust. It is only just and proper that in matters concerning the dissolution of marriage, both the parties are adequately and substantially heard before passing any orders on merit.

Under these circumstances, we are of the view that the matter requires to be reconsidered by the Family Court by granting an adequate opportunity to the respondent-wife to have her say in the matter. For the aforesaid reasons, the appeal is allowed. The order dt. 27.8.2012 passed by VI Addl. Principal Judge, Family Court, Bangalore in M.C. No. 966/12 is set aside. The matter is remanded back to the Family Court for fresh disposal in accordance with law. Parties to be present before the lower court on 7.4.2014.