Smt. M.D. Asha vs Sri Thippesha @ Thippeswamy

K.L. Manjunath, J.—The appellant, who is the wife of the respondent is questioning the legality and correctness of the judgment and decree passed by the Prl. Civil Judge (Sr.Dn.) & CJM, Chitradurga, in M.C. No. 29/2012 dated 12.9.2012 whereunder, the marriage solemnized between the parties at Chitradurga on 13.1.2003 has been dissolved u/s 13(1a) & (1B) of the Hindu Marriage Act. Heard the learned counsel for the parties.

Marriage between the parties solemnized on 13.1.2003 at Eswara Temple situated at Chandravalli, Chitradurga is not in dispute. Even according to the respondent-husband they lived together as husband and wife for two years and on 11.7.2005, the appellant was sent to her parents'' house as she was carrying and in her family way.

It is the specific case of the respondent that after delivery, she did not return to her matrimonial house. In the circumstances, the respondent filed a petition in M.C. No. 62/2008 seeking divorce against the appellant which was later dismissed as withdrawn since the appellant agreed to join her husband. It is also the case of the respondent that appellant rejoined him, but again on 5.3.2010, the appellant left the company of the respondent and started to reside with her parents. Thereafter, he filed a petition and the said petition was not contested by the appellant. In the circumstances, the Trial Court recorded the evidences of 3 witnesses as P.W.-1 to 3 amongst them, P.W.-1 is the respondent-husband and he relied upon Ex.P-1 to 9. The Trial Court allowed the petition filed by the respondent-husband and has granted decree of divorce only on the ground that the appellant herein has lodged a complaint with the police u/s 498A of IPC in C.C. No. 889/2008 and that she has also filed a petition for maintenance in Cr. Misc. 495/2009 before the Family Court, Davanangere and also on the ground that the act of the appellant herein amounts to cruelty and that she has been residing separately for more than 2 years and that she has no intention to join her husband. Challenging the decree of divorce granted by the Trial Court, the present appeal is filed.

The only contention urged by the learned counsel for the appellant is that the decree granted by the Trial Court is an exparte decree and that for the reasons beyond her control she could not contest the matter. Alternatively, he contends that the Trial Court without considering the oral and documentary evidence produced by the respondent has erroneously granted a decree without application of mind. In the circumstances, he requests for setting aside the judgment and decree passed by the Trial Court and to remand the matter for fresh consideration in accordance with law.

Having heard the learned counsel for the parties, we have noticed that sufficient cause is not shown by the appellant to set aside the decree. However, we are of the view that the Trial Court did not consider the evidence let in by the respondent herein to grant decree of divorce. However on the ground of cruelty or desertion, the Trial Court has not formulated points for its consideration based on the pleadings and evidence of the respondent. Therefore, we are of the view that the order of Trial Court has to be set aside and the matter has to be reconsidered by the Trial Court afresh in accordance with law by providing reasonable opportunity to the appellant. In the result, the following order is passed:

a) The appeal is allowed.

b) The decree of divorce granted by the Prl. Civil Judge (Sr. Dn.) & CJM, Chitradurga in M.C. No. 29/2012 dated 12.9.2012 is set aside The matter is remanded to the Trial Court for fresh consideration in accordance with law.

c) The parties are directed to appear before the Trial Court on 20.1.2014 without awaiting for further notice from the Trial Court.

d) The appellant is granted four weeks time to file objections to the petition filed by the respondent and thereafter the Trial Court is directed to proceed with the matter in accordance with law.