N.K. Patil, J.@mdashThis appeal by the appellant is directed against the judgment and award dated 12th March 2012, passed in M.C. No. 3072/2010, by the V Additional Principal Judge, Family Court, Bangalore. The respondent husband had filed a petition u/s 13(1)(i-a) of Hindu Marriage Act, 1955, praying to pass the judgment and decree, dissolving the marriage of the appellant with the respondent solemnized on 11-08-2008 as per the Hindu rites and customs, which was registered before the Sub-Registrar, Basavanagudi, Bangalore, vide Marriage Reg. No. PSG-HM-612/0809 and for such other reliefs.
2. The brief facts of the case in hand as mentioned in the petition before the Trial Court are that, the appellant and respondent are the legally wedded wife and husband and their marriage was solemnized on 11-08-2008, at Sri. Raja Shivaramaiah Shetty Smt. Parvathamma Dharmashala Trust, Chamarajapet, Bangalore-18 and it was registered after three months on 25-11-2008. After marriage, they started residing together as husband and wife along with her in-laws. The marriage was settled as per the wish and desire of the parties with the consent of the parents. The husband had ignored the words of his parents having full faith upon the wife and had trusted that she will be a dutiful and faithful wife to him through out his life. But, unfortunately, in spite of the best efforts by the husband, they had difference of opinion between themselves because of non-co-operation and adamant attitude of the wife. It is the case of the husband that the wife was highly qualified and was non-co-operative coupled with adamant attitude and they were not happy and they had no issues. It is the further case of husband that the wife used to pick up quarrel for each and every aspect making his life miserable and did not follow the advise of the husband and she had no consideration and she used to use filthy and vulgar language, even though he tried his best to fulfill the obligation and tried to keep her in full comfort. Further, without any justification and without intimating the husband, she left the matrimonial home to her parent''s house at Hulimavu with all her belongings. Further, it is the specific contention of the husband that the wife used to talk over telephone with another person during day and night. The husband being the only son to his parents was in the fond hope that one day or the other, the wife would mend her ways and take care of himself and his parents. But, she did not even show minimum courtesy to show minimum respect to his parents. Therefore, he felt that it is not possible for him to live with her. After the wife left to her parent''s house on 22-02-2009, at the intervention of the well-wishers and elders in the family, panchayat was convened and the wife and her parents were intimated, but they did not co-operate nor showed any keen interest to settle the matter at panchayat level.
3. Be that as it may, without joining the husband in the matrimonial house, the wife has gone to join the P.G. course and secured a job at BASE tutorials and earning a sum of Rs. 20,000/- per month. After lapse of five months, all of a sudden, with a mala fide intention, the wife gave trouble and harassment to husband and beat him by using bad and vulgar language and also averred that she wants luxurious life and the husband is coming from a poor family and is suffering from low and high B.P. and also he is a cardiac patient and in support of the same, documentary evidence is also produced at Exs. P4 to P7. Therefore, as the husband could not tolerate the torture both physical and mental and the wife could not adjust, the husband, having no other alternative, filed the petition u/s 13(1)(i-a) of Hindu Marriage Act on the file of the V Additional Principal Judge, Family Court at Bangalore, which was numbered as M.C. No. 3072/2010.
4. Upon service of notice to the wife, she engaged the services of the counsel, Shri. Satyanarayana Gopal Rao and in spite of giving sufficient opportunity, they did not file the written statement nor denied the averments made in the petition. Even the learned Presiding Officer of the Family Court has made sincere efforts to bring conciliation between the parties. They promised to come and pursue the conciliation proceedings. But, they did not bother to appear for conciliation nor entered the witness box to give oral evidence or got marked any documents. The case was being adjourned from time to time on more than twenty occasions. Due to non co-operation of the wife and her counsel, there was no other option but to hear the husband and his counsel and pass orders. Accordingly, the Court below, after hearing the husband and his counsel, and after considering the oral and documentary evidence available on file, taking into consideration the totality of the case on hand and having regard to the strained relationship between the parties and failure to bring about an amicable settlement between the parties, proceeded to allow the petition, dissolving the marriage solemnized on 11-08-2008 by granting a decree of divorce. Being aggrieved by the said order passed by the Court below, the wife has presented this appeal, seeking to set aside the same.
5. Learned counsel appearing for appellant at the outset submitted that due to communication gap and lack of awareness regarding legal implications, the appellant could not co-operate and she was under the bona fide impression that the counsel will take care of the necessary steps to participate in the proceedings and safeguard her interest. But, unfortunately, the same did not materialize. Therefore, he submits that if an opportunity is afforded, she will be in a better position to substantiate her case that, she has not given any mental and physical torture to the husband nor abused him in filthy or vulgar language, on the other hand, it is because of the non co-operation of the husband and interference of his parents, the relationship between them got strained. Further, he vehemently submitted that there is an uncharitable allegation against the wife that she has illegal connection with another person and she used to talk over telephone day and night. The same is a very serious one and tarnishes her image and is a permanent stigma to her life and career. Without producing any evidence in support of the same, the same is not tenable nor the husband is permitted to make such allegations. Further, he submits that, the Court below has grossly erred in concluding the proceedings on the basis of the contentions taken by the husband and if the impugned judgment and decree is confirmed by this Court, the wife will be put to untold hardship and her future will be jeopardized and she will not be in a position to face the public, particularly the family members and relatives. This aspect of the matter ought to have been looked into and considered by the Court below. If the counsel of the appellant did not co-operate, then the Court below might have issued court notice to the appellant and secured her presence to enable her to substantiate her case. Therefore, he submitted that the impugned judgment and decree passed by Court below is liable to be set aside and matter be remanded back to the Court below for reconsideration afresh in accordance with law, after affording opportunity of hearing to the appellant and permit her to file written statement and also adduce oral and documentary evidence and the matter may be decided on the merits of the case, by imposing reasonable cost payable to the respondent, for engaging the services of a counsel before this Court.
6. After careful consideration of the grounds urged by the appellant in the memorandum of appeal, after hearing the learned counsel appearing for appellant and after perusal of the impugned judgment and decree passed by Trial Court, it emerges that the appellant is served before the Court below and represented through a counsel. But due to communication gap between the counsel and the client, they have not filed the written statement to the averments made in the petition filed by husband. It is not in dispute that the wife has not entered the witness box nor adduced her oral evidence or got marked any documentary evidence in support of her case. In spite of sufficient opportunity granted to the wife, to bring about re-conciliation between the parties, the same could not materialize due to non-appearance and non-co-operation by the wife. Therefore, there was no option for the Court below but to hear the husband and pass appropriate orders on the basis of the material available on file including the oral and documentary evidence adduced by husband.
7. However, as rightly pointed out by the learned counsel appearing for appellant, there is a serious allegation made by the husband against the wife that she has some illegal connection with another person and she used to talk over telephone day and night, without producing any documentary evidence. If opportunity is afforded to her, she would be in a position to defend her case and prove that she is innocent and she does not have any illegal relationship with another person and that she was not talking to another person day and night. Further, it is the submission of the learned counsel appearing for appellant that the Court below, on the basis of the oral and documentary evidence on behalf of the husband, has given a finding that it has accepted the contention of the husband and noted that the medical evidence produced clearly establish that the husband is also not keeping any good health. All these observations made by Court below are one one-sided without hearing the other side. We find some substance in the contention taken by the appellant and are of the view that the matter requires reconsideration by the Court below.
8. Therefore, without expressing any opinion on the merits or demerits of the case, it would suffice for this Court if appropriate direction is issued to the Court below to reconsider the matter and dispose of the same, to meet the ends of justice. In the light of the discussion made above, the appeal filed by the appellant is allowed in part.
The impugned judgment and decree dated 12th March 2012, passed in M.C. No. 3072/2010, by the V Additional Principal Judge, Family Court, Bangalore, is hereby set aside;
The matter stands remanded back to Court below for reconsideration afresh from the stage of recording the evidence of the appellant and to pass appropriate order, in accordance with law, after affording reasonable opportunity of hearing to the parties, personally or through their counsel and dispose of the same, as expeditiously as possible.
Parties are permitted to file necessary application/s, for adducing additional evidence, oral/documentary, to substantiate their respective cases within two weeks from the date of receipt of a copy of this judgment;
In case such application/s is/are filed by the learned counsel for the parties, within the time stipulated above, the Court below is directed to receive the same and proceed further and dispose of the same as expeditiously as possible, in compliance of the direction issued by this Court, as above;
Further, the appellant is directed to file written statement along with necessary documents on 05-08-2013, after duly serving a copy of the same to the counsel for respondent before this Court and in case the same is filed, the Court below is directed to receive the same and proceed further from the stage of recording evidence of appellant;
Both the appellant and Respondent are directed to appear before V Additional Principal Judge, Family Court, Bangalore, on 05-08-2013 at 11:00 A.M., to enable them to take further dates of hearing, as requested.
The appellant is directed to pay costs of Rs. 5,000/- (Rupees Five Thousand Only) to the respondent by way of cash or Demand Draft on 05-08-2013, before the jurisdictional Court and file a memo for having paid the same along with acknowledgment;
Registry is directed to return the entire original records to the Court below, forthwith.
