K.L. Manjunath, J.@mdashThough the matter is posted to consider I.A. No. 3/2014, for vacating the order of injunction granted by this Court on 22.01.2014, with the consent of the learned counsel appearing for the parties, the appeal is heard on merits and disposed off vide this appellate order. The appellant is challenging the legality and correctness of the order passed by the Principal Senior Civil Judge & ACJM, Puttur, D.K., dated 05.11.2013 passed in M.C. No. 12/2013.
2. The appellant was respondent before the Court below. The respondent herein who is the husband of the appellant filed the divorce petition to dissolve the marriage solemnized between them on 09.03.2012 at Ananthapadmanabha Sabha Gruha at Hangluru of Kundapura Taluk, Udupi District on the ground of cruelty.
3. The facts leading to this appeal are as hereunder:
The marriage was solemnized between the parties on 09.03.2012. After the marriage, the wife joined the matrimonial home situated in Nekkilady Village at Puttur Taluk. The marriage was not consummated on account of non-cooperation of the wife and ultimately the wife left the husband and started living with her parents at Sagara. The efforts made by the well-wishers and the relatives of both the parties to bring union between the parties had ended in vain. Therefore, a petition was filed for grant of divorce on the ground that the conduct of the respondent-wife amounts to mental cruelty.
4. Notice was served upon the appellant-wife. Though she received the notice, she did not appear before the Court and she was placed exparte.
5. To prove the ground of cruelty, the husband got himself examined as PW-1 and his father was examined as PW-2. He relied upon Exhibits - P1 and P2. The trial court formulated the following points for its consideration:
1. Whether the petitioner made out bonafide grounds to grant divorce as prayed in the petition?
2. What Order?
6. In the evidence the respondent-husband contended that the appellant herein was not ready and willing to lead marital life with him. Since she did not agree for consummation of marriage; in the panchayat it was agreed between them that they should live separately and accordingly an agreement also came into existence. According to him, the appellant agreed for marriage on account of her parents force and that she was not willing to marry him and intended to continue her studies. Since the appellant was not willing for consummation of marriage as she was not willing to live with the respondent-husband since the evidence of husband was not challenged, the trial court granted the decree of divorce on 05.09.2013.
7. Challenging the legality and correctness of the same, the present appeal came to be filed contending that she was not aware of the M.C. proceedings initiated by her husband and that a fraud has been played on her and that without her knowledge a divorce petition was filed behind her back and the husband has managed to obtain an exparte decree of divorce by getting the notice served on a wrong person and that she was not aware of the same and as such she could not contest the case. Therefore, she requested the court to set-aside the judgment and decree of the trial court.
8. The appeal was filed on 21.01.2014. Along with the appeal memo. an interlocutory application also came to be filed under Order-41, Rules-5, read with Section-151 of C.P.C., to restrain the respondent-husband from marrying another lady. Contending that the respondent has obtained an exparte decree of divorce and is going to marry a lady of the same village on 23.01.2014 by producing the invitation card distributed by the parties to the marriage, she sought for an ad-interim order of injunction. Based on the submissions of the appellant and the affidavit filed by her; this Court believing that exparte decree has been obtained by the respondent without getting the notice served upon the respondent this court granted an order restraining the respondent from marrying one Ms. Saroja, daughter of Smt. Savithramma and Shri Puttaswamy, of Kodnahalli Village of Sagara Taluk.
9. As per the invitation the marriage was scheduled to be held on 23.01.2014. The previous day to the marriage an interim order was granted by this court by directing the Registrar to FAX the order to the Police Station of Sagara to see that no marriage shall be performed and that the respondent shall not marry Ms. Saroja either on 23.01.2014 or on any other date.
10. The respondent has now filed an application for vacating the interim order of injunction granted by this Court by filing an application under Order-39, Rule-4 read with Section-151 of C.P.C. In the Affidavit filed in support of the application it is contended by the husband that there is an agreement entered into between the parties on 05.09.2013 which was produced by him before the trial court and marked as Exhibit-P2 wherein the parties have agreed to file a petition under Section-13(B) of the Hindu Marriage Act to grant a decree of divorce by way of mutual consent.
11. According to the agreement, the parties herein did not live together as husband and wife. The marriage was not consummated on account of non-cooperation of the wife and therefore in the presence of the elders and relatives they decided to take divorce by consent. It is also the case of the respondent that the appellant failed to act in terms of Exhibit P2. The appellant did not agree to file a petition under Section-13(B) of the Hindu Marriage Act. In the circumstances, the respondent was compelled to file a petition for grant of a decree of divorce on the ground of cruelty in M.C. No. 12/2013.
12. It is also his specific case that notice issued by the court, was served upon the appellant herein personally on 24.04.2013. Though she received the notice she did not contest the case by engaging an Advocate. It is also his case that after the service of notice instead of appearing before the trial court, the respondent got issued a legal notice through her Advocate mentioning the filing of the divorce petition by the respondent against her in M.C. No. 12/2013 and thereafter she filed a petition under Section-125 of Cr.P.C. claiming maintenance @ Rs. 5,000/- per month before the Civil Judge, Junior Division, Sagara in C. Misc. No. 170/2013 dated 25.10.2013 In the second paragraph of page-3 of the petition filed under Section-125 of Cr.P.C., she has categorically admitted the receipt of the court in M.C. No. 12/2013 filed by the respondent against her for grant of a decree of divorce and it is stated that though summons were served upon her on account of a threat made by the respondent-husband directing her not to contest the case by appearing before the court at Puttur. Therefore, he contends that the appellant herein by suppressing the material facts has obtained an ad-interim order of injunction restraining the respondent from marrying Ms. Saroja after getting a decree of divorce in M.C. No. 12/2013 and that the contention of the appellant that notice was not served upon her and that the respondent has managed to obtain a decree of divorce by got serving a notice upon a wrong person is incorrect. Therefore, he requests the court to dismiss the appeal.
13. It is also his case that on account of an exparte order of injunction granted earlier, the marriage between him and Ms. Saroja which was scheduled to be held on 23.01.2014 was cancelled and on account of the same and financial loss he has suffered and reputation. It is also his case that the parents of Ms. Saroja were also made to spend huge amount for marriage expenses scheduled to be held on 23.01.2014 and that the respondent has to make good the loss to them on account of the interim order granted by this Court. In the circumstances he requests the Court to dismiss the appeal with cost by awarding compensation to him towards loss of reputation, humiliation and financial loss. On account of humiliation suffered by both the family and loss of reputation of the respondent and his family and so also the loss of reputation caused to the family of Ms. Saroja.
14. After noticing the facts of this appeal, an attempt was also made by us to settle the dispute amicably between the parties. The settlement was failed since there were not chance for the parties to live together. During the course of settlement, it is noticed by us that the marriage is not consummated due to non-cooperation of the appellant. The learned counsel for the appellant submits that the appellant has suppressed the material facts before this court about the service of suit summons on the appellant in M.C. No. 12/2013, due to bonafide mistake and also due to wrong advise given to her and that she is willing to join the respondent and he further submits that an opportunity shall be given to the appellant to contest the case filed by the respondent. In the circumstances, he requests the Court to allow the appeal.
15. The learned counsel appearing for the respondent reiterating the grounds urged by him in the application filed by him for vacating the order of injunction requests the Court to dismiss the appeal with costs and also to award compensation. According to him the respondent has been put to untold hardship and misery due to non-consummation of marriage on account of non-cooperation of the appellant and he has suffered sleepless nights which amounts to mental cruelty. He further submits that the appellant who had agreed to give consent for divorce since she was not interested in marriage in marrying the respondent as she was compelled to marry the respondent only on account of pressure of her parents and that there was no justification for the appellant to withdraw herself from the company of the respondent and not allowing the marriage to be consummated. According to him the very purpose of marriage is defeated due to non-consummation of marriage for no fault of him. According to him, it was a nightmare for the respondent every day as the appellant was quarrelling with him. Therefore, he requests the Court to dismiss the appeal.
16. Having heard the learned counsel for the parties, the following points arises for consideration in this appeal:
i. Whether the decree of divorce granted by this court below is an exparte decree without service of notice on the appellant?
ii. Whether the respondent has made out a ground to dissolve the marriage solemnized between the parties on the ground of cruelty?
iii. Whether the respondent is entitled for compensation on account of restraining the marriage with Saroja scheduled to be held on 23.01.2014, on account of appellant obtaining an exparte order of injunction by suppression of facts?
17. We would like to deal with all these points together as hereunder:
It is the specific case of the appellant that the respondent has obtained an exparte decree of divorce without serving the suit summon on the appellant. It is her specific case that the respondent managed to serve the suit summon on other person and placed her exparte. In ground No. 3, para-7 of the appeal memo., the appellant has stated as under:
7. Neither a notice was served on appellant nor the appellant had the knowledge about the fact of issuance of notice by the Court or pending of the proceedings.
18. On perusal of the court summons produced by the respondent it is clear that it was served upon the appellant on 24.04.2013. The service of notice has been confirmed by her in the petition filed by her under Section-125 of Cr.P.C. in C. Misc. 170/2013 pending on the file of Civil Judge, Junior Division, Sagara in para-2 of page-3 of the petition. Wherein it is clearly stated that the respondent herein has filed a petition for divorce in M.C. No. 12/2013 after receipt of summons when she questioned him, he threatened the appellant not to contest the case by attending the court at Puttur and that if she appears before the Puttur court she would be killed by causing an accident and therefore she has not appeared-before the court below.
19. It also not in dispute that before filing the petition under Section-125 of Cr.P.C., there were exchange of notices between the parties. In the legal notice dated 14.8.2013 got issued by the appellant, through Shri Jawid Ahmed, Advocate, Sagara. She admitted the receipt of the suit summons in M.C. No. 12/2013. The said notice is dated 14.08.2013. The petition is filed under Section-125 of Cr.P.C. on 25.10.2013, i.e., two months after the issuance of legal notice by the appellant.
20. From the above conduct it is clear that the notice was served upon the appellant in M.C. No. 12/2013 and inspite of service of notice on her instead of contesting the case by engaging a lawyer she has got issued a legal notice on 14.08.2013, i.e., two months later she got filed a petition under section-125 of Cr.P.C., admitting the receipt of notice. By suppressing the issuance of legal notice dated 14.08.2013 and filing of the petition under Section-125 of Cr.P.C., she filed the above appeal stating that the respondent has managed to obtain an exparte decree. As stated in ground No. 3 of the appeal memo. it would only disclose the conduct of the appellant. The appellant has no regards for the truth. In view of her conduct we are of the view that the judgment of the trial is an exparte judgment cannot be believed. Accordingly, point No. 1 is held against the appellant.
21. Even if we hold point No. 1 against the appellant, still we have to consider whether trial court is justified in granting a decree of divorce on the ground of cruelty. So far as this point is concerned, admittedly the marriage was solemnized between the parties on 09.03.2012 immediately after the marriage the appellant has joined her marital house at Nekkilady Village at Puttur Taluk. The marriage has not been consummated on account of non-cooperation of the appellant. The appellant counsel is not disputing the contention of the other side that the marriage is not consummated due to the conduct of the appellant. There are valid reasons for the appellant to withdraw her company from the respondent and she has not discharged the marital obligation for more than one year of marriage and the marriage is not consummated on account of the non-cooperation of the appellant. Naturally the respondent-husband has undergone trauma and metal cruelty and he has been disturbed. Therefore, the conduct of the appellant has to be considered as mental cruelty insofar as the respondent is concerned.
22. In addition to that inspite of service of notice to her in M.C. No. 12/2013 she got issued a legal notice to the respondent making wild allegations against him and later she went to an extent of filing a case to grant of maintenance under Section-125 of Cr.P.C. The contention of the respondent that the appellant was not interested to marry him and that she married on account of coercion and pressure of her parents cannot be disbelieved. If the appellant was not interested in marrying the respondent it was for her to convince her parents to see that the marriage with the respondent is cancelled. Having married the respondent, consummation of marriage cannot be denied to the respondent. In the circumstances, we are of the opinion that the conduct of the appellant in treating the respondent during her stay with him in Nekkilady Village has to be considered as mental cruelty. Therefore, we do not find any reason to reverse the findings of the trial court on the question of cruelty.
23. So far as the last point is concerned, admittedly by filing a false Affidavit suppressing the true facts she managed to obtain an exparte decree of injunction to restrain the respondent from marrying one Ms. Saroja which was scheduled to be held on 23.01.2013. Believing the Affidavit filed by the appellant, we even went to an extent of directing the Sagara Police to see that the marriage is cancelled. As contended by the respondent not only the family of the respondent but also the family of the bride Ms. Saroja have been put to mental torture and that their reputation in the eye of public is tarnished, when all arrangements were made by distributing the invitation and even the other ceremonies which would be performed on the previous day of the marriage were performed by the respondent family and the family of Ms. Saroja. Therefore, we are of the view that the respondent has to be compensated by the appellant on account of obtaining an order of injunction by playing fraud and suppressing the facts which is nothing but abuse of the process of the court.
24. Though the respondent is entitled for adequate compensation, since the marriage between the appellant and respondent is dissolved and that on account of the conduct of the appellant, the appellant''s parents shall not be over-burdened we only award a nominal compensation to the respondent at Rs. 10,000/- which shall be paid by the appellant within four weeks from the date of receipt of copy of this order. In the result, the appeal is dismissed. The decree of divorce granted by the Principal Senior Civil Judge & ACJM, Puttur in M.C. No. 12/2013, dated 05.11.2013 is hereby confirmed.
