Pramila vs Nirmal Kumar

P.S. Dinesh Kumar, J.—This appeal is filed by the appellant - wife whose marriage solemnized with the respondent on 14.4.2000 has been dissolved by a judgment and decree dated 5.8.2010 in M.C. No. 356/2009 on the file of I Addl. Principal Family Court, Bengaluru in a petition filed by the respondent - husband under Sections 13(1)(ia) & (ib) of Hindu Marriage Act, 1955 (''Act'' for short).

Respondent filed the instant petition before the Family Court contending inter alia that after solemnization of marriage at Punnia Dola village, Pali District, Rajasthan, the couple stayed in Rajasthan for four months and moved to Bengaluru. Ever since the date of marriage, couple could not lead a happy married life due to arrogant and abnormal attitude of respondent. Several panchayats convened to bring in harmony between the couple had failed.

The couple have two children namely, Sonali Pirgal and Karan Pirgal from the marriage.

Respondent is physically handicapped and uneducated. He is dependant upon his brother and assists him as a Helper in his shop. He does not get any salary, but take care of his well being.

During her stay in the matrimonial home, appellant used to cry and laugh without any reason; she would not extend her hand in day to day household work; and she would not do any daily chores such as cooking food, washing clothes etc. Further, appellant would behave in an abnormal manner with the respondent. She would compel him to stay awake in the night, scold him in filthy language and assault. She had also made attempts to run away from the matrimonial home during midnight.

During January 2007, appellant left matrimonial home and settled with her parents in Maharashtra. Panchayaths were convened to patch-up the differences between the couple, but did not yield any results. Appellant was stubborn and refused to join respondent in the matrimonial home. With the above averments respondent filed the instant petition.

Two witnesses were examined on behalf of the respondent - husband and 18 documents marked. On behalf of the appellant none was examined nor any document marked. On consideration of the material on record, the family Court has allowed the petition granting a decree of divorce. Hence, this appeal.

We have heard Sri B.V. Shankarnarayana Rao, learned Counsel appearing for Sri Shivakumar H., learned Counsel for the appellant and Sri Prabhugoud B. Tumbigi, learned Counsel for M/s. M.T. Nanaiah Associates.

Learned Counsel for the appellant at the outset submits that the impugned judgment and decree is virtually an ex-parte decree. Amplifying his contentions, he adverted to paragraph - 18 of the judgment, wherein, the learned Family Judge has noted that after service of notice, the appellant though appeared through her Advocate has not contested the petition by filing any statement of objections nor cross -examined the respondent''s witnesses nor let in any evidence on her behalf and contended that the reason for her absence and not diligently defending the petition before the Family Court is that she is a poor lady residing under the mercy of her brothers. Further, she is also keeping indifferent health. Poverty and ill health are main reasons for her absence before the Family Court.

The next contention urged by the learned Counsel for the appellant is that, the petition for divorce filed by the respondent was not maintainable before the Family Court inasmuch as there was no cause of action insofar as the ground of desertion is concerned. To substantiate his contention, he places reliance on a medical report of the appellant issued by Pratham Diagnostic Centre, Mumbai, which is marked as Ex. P11 and dated 18.12.2008. He submits that Ex. P11 having been marked on behalf of the petitioner - respondent should lead to an inference that the couple were living together as on 18.12.2008 and therefore the petition for divorce was not maintainable for want of compliance of statutory period of desertion of not less than two years. He submits that in these circumstances, the impugned judgment and decree is unsustainable in law and accordingly prays for allowing this appeal.

Per contra, learned Counsel appearing for the respondent submits that though the appellant appeared before the Family Court, she deliberately chose not to participate in the proceeding. Therefore, the impugned judgment cannot be assailed for want of reasonable opportunity. Adverting to the period of desertion and Ex. P11, the learned Counsel submits that a mere fact that a medical report is brought on record does not ipso facto prove that the parties have been living together. On merits, he submits that the appellant has caused immense agony and deserted the respondent voluntarily. Accordingly, he prays for dismissal of this appeal.

We have bestowed our anxious consideration to the submissions made by the learned Counsel for the parties and examined the material papers including the trial Court records.

Learned Counsel for the appellant is right in his submission that the learned Family Court has recorded a categorical finding in paragraph-18 that after notice, the appellant though appeared through her Counsel did not chose to defend the case diligently.

Adverting to the next submission of the learned Counsel for the appellant that Ex. P11 demonstrates that the petition was not maintainable before the Family Court for want of compliance of condition with regard to the minimum period of desertion of two years prescribed in the Act, we hold that mere production of a document would not conclusively establish that the couple had lived together.

On an earlier date of hearing, the parties were present before this Court. We have noticed that both the appellant and the respondent are not fully normal. In the circumstances, we are persuaded to accept the explanation offered by the appellant for not diligently defending the petition and hold that the proceeding conducted before the family Court were virtually ex-parte against the appellant. We say so, because this is a family lis touching upon the lives of a couple and two children. In the circumstances, we are of the considered view that to meet the ends of justice, it would be appropriate to grant one more opportunity to the appellant to defend her case before the family Court.

In the result, we pass the following:--

(i) Appeal is allowed;

(ii) Judgment and Decree dated 5.8.2010 in M.C. No. 356/2009 on the file of the I Addl. Family Court, Bengaluru, is set aside and the matter is remitted back to the Family Court for fresh disposal in accordance with law;

(iii) The Family Court is directed to grant opportunity to both parties to file pleadings/additional pleadings, lead evidence and thereafter hear them and dispose of the petition as early as possible and at any rate within a period of six months from the date of appearance of the parties;

(iv) All contentions of respective parties are left open;

(v) Parties are directed to appear before the Family Court on 13.10.2015 at 11.00 a.m without notice and collect further adjourned dates;

No costs.