Pushpa K.V. vs Santhosh Kumar B.K.

N. Kumar, J.

This is wife''s appeal challenging the order of the Family Court allowing the petition filed under Section 13(1)(1a)(1b) of Hindu Marriage Act, 1955.

For the purpose of convenience, the parties are referred to as they are referred to in the MC petition.

Sri B.K. Santhosh Kumar petitioner-husband married the respondent-Smt. K.V. Pushpa on 14.3.2011 as per Hindu rites and customs at Satyapramoda Kalyana Mantapa, Basavanagudi, Bengaluru. After the marriage, she resided in matrimonial home with the petitioner along with his family members comprising of his father, his brother and his brother''s wife Smt. Ramya. The respondent, after the marriage joined Mahila Mandali School, N.R. Colony, Bengaluru. The allegation is, she was not doing any household work and not helping Smt. Ramya in doing household chores. After about six months, the respondent started demanding the petitioner to make a separate house by leaving his family members. The petitioner''s mother passed away and therefore, the petitioner tried his best to convince to stay in the joint family. Before the marriage also, the respondent was clearly stated about staying with joint family and she had readily agreed. About three months thereafter, she started pressurizing to make a separate house. Due to financial conditions and various other reasons, respondent was requested to drop her idea but inspite of the request, she went to her parental home on 5.2.2012. She informed the petitioner that unless he makes a separate house, she will not come back to the marital home. She took all her belongings with an intention to leave the petitioner. She avoided the petitioner when he tried to get in touch with her. All his efforts to bring her back to the marital home went in vain.

The brother of the petitioner along with his family moved to a separate house to accommodate the petitioner to resolve the marital issue. Thereafter, when the petitioner approached the respondent and requested her to return, she refused and stated that she is not interested to lead marital life with the petitioner. She is residing separately at her father''s house for the past more than two years. On many occasions she had denied to come back to the marital home and caused cruelty on the petitioner by refusing to cohabit with him. She was also threatening of filing a dowry harassment case against the petitioner and his family members. She never tried to lead a normal marital life and co-operated with the petitioner in leading marital life. The petitioner does not want to suffer any more and he is not at all ready to continue the relationship with the respondent. Therefore, he filed a petition for divorce.

The respondent was served with the notice. She entered appearance. Thereafter, the matter was referred to mediation. The matter was not settled there. Later, she did not file a statement of objection. Therefore, the Family Court proceeded to record the evidence of the petitioner as PW.1 and marked four documents as Ex. P1 to P4 and after hearing the arguments proceeded to pass the impugned order granting decree of divorce both on the ground of cruelty as well as on the ground of desertion. Aggrieved by the said order, respondent-wife has preferred this appeal.

Learned counsel for the petitioner, assailing the impugned order contends, after failure before Mediation Centre, she was under the impression that there will be further mediation proceedings. The case was posted for filing of statement of objections. It is stated that, she was present on the date of hearing and time was sought to file statement of objections, but, the same was rejected. It is clear that without legal assistance, she could not file statement of objections. In the meanwhile, the Family Court has proceeded to pass the impugned order. He submits, an opportunity may be given to the respondent to put-forth her defence. Even the evidence on record do not substantiate the ground of cruelty and desertion.

Per contra, the learned counsel for the petitioner submitted, the impugned order is based on the material evidence available on record and it does not call for interference.

In the light of the aforesaid material on record and rival contentions, the point that arises for our consideration is:

"Whether the case of desertion and cruelty is made out particularly when material on record does not justify passing of a decree for divorce?."

The marriage between the parties is not in dispute. The only dispute appears to be the wife was not willing to live with the brother of the petitioner and his wife and therefore, she demanded a separate residence. In fact, if the case of the petitioner is to be believed that she was also provided a separate house she refused to join him, in the entire petition, there is no allegation of cruelty when they were living together. The cruelty which is pleaded is that, wife refused to join the husband. It is only a say of the petitioner that she refused to join the husband and reason for not joining him is not forthcoming from the material on record. Probably, as respondent did not file counter and contest the matter, petitioner appears to have taken the case very lightly. In a matrimonial matter, unless a ground as contemplated under Section 13 of the Hindu Marriage Act exists, the Family Courts get no jurisdiction to pass a decree for divorce. Therefore, notwithstanding that no objections were filed, the witnesses of the petitioner were not cross-examined, there is obligation cast on the petitioner to adduce his evidence in support of his case to make out a ground either for desertion or for cruelty. Therefore, seen from any angle, the evidence on record does not support the case of the petitioner. Even, in respect of desertion, two years is calculated from 5.2.2012 i.e. the date on which the wife rejected the company of the husband and went to her parents house on a specific demand that she will come back only if he makes a separate residence. The evidence on record shows, he did make a separate house. Thereafter, he approached the Court contending that she refused to come back to marital home. If the case of the petitioner is to be believed, the date on which she withdraw the company of her husband, if at all it could be taken the starting point of limitation of two years as contemplated under Section 13(1)(ib) of the Act, the Trial Court has mis-read the evidence and calculated two years period from 5.12.2012 which is apparently incorrect. As stated earlier, as the matter was not contested, the party has taken the issue lightly. Even the Family Court has not applied its mind properly and has passed an ex-parte decree. The approach of the Family Court in a matrimonial matter is not in accordance with law. Therefore, the impugned order cannot be sustained. The proper course would be to set aside the decree and remand the matter back to the Family Court to give an opportunity to the wife to file her statement of objection thereafter, both the parties could adduce evidence in support of their respective contentions and then the Court would be in a better position to pass an order on merits. Hence, we pass the following order:

"The appeal is allowed. Impugned order is hereby set aside. MC No. 1018/14 is restored to its original file. The wife shall file statement of objection within 30 days from today. Thereafter, the Family Court shall try and adjudicate the dispute in accordance with law. The parties shall appear before the Family Court on 08.04.2015 positively. The appellant shall pay Rs. 5,000/- (Rupees five thousand) towards costs to the respondent on or before 8.4.2015 and then file statement of objection and contest the matter."