Smt. H.R. Bharathi vs P Nagabhushan

Dr. Bhakthavatsala, J.—This is wife''s Appeal filed u/s 19 of the Family Courts Act r/w Section 28 of Hindu Marriage Act, 1955, challenging the impugned judgment and decree of divorce dated 25.9.2010 and 4.11.2010, respectively, made in M C No. 1570/2009 on the file of II Addl. Prl. Judge, Family Court at Bangalore. Learned Counsel for the appellant submits that the respondent is none other than the appellant''s brother-in-law as her elder sister is married by respondent''s elder brother and the marriage of the appellant was performed with the respondent on 4.5.2006 and out of her wed lock with the respondent she has delivered a male child by name Prajwal on 25.2.2008 and the Petition for divorce was filed on 11.6.2009 u/s 13(1) (ib) of the Hindu Marriage Act, on the ground of desertion, but the impugned judgment shows that divorce was granted on the ground of cruelty and incurable disease of unsound mind. He submits that after the service of notice before the Court below, the appellant engaged an Advocate on 16.1.2010, but did not file written statement on the ground that the respondent took her to his residence arid then left her in her parents'' house saying that he would take her back after making separate residence, but it appears that the respondent pursued the Petition and got the decree of divorce exparte. He also submits that the impugned judgment and decree may be set aside and the matter may be remanded to the Family Court for disposal, in accordance with law. He also submits that the respondent did not pay any maintenance or litigation expenses.

On the other hand, learned Counsel for the respondent submits that there is no merit in the submission of learned Counsel for the appellant as the appellant did not contest the case and seek litigation expenses and therefore question of paying any litigation expenses did not arise and the trial Court, on proper appreciation of evidence of P.W.-1 placed on record, came to a conclusion that the respondent was entitled for decree of divorce on the ground of cruelty and incurable mental disease and there is no illegality or infirmity in the impugned judgment and decree.

Perused the LCR.

For the purpose of convenience and better understanding, ''the appellant'' and ''the respondent'' are hereinafter referred to as ''the respondent'' and ''the petitioner'', respectively.

The brief facts of the case leading to the filing of the Appeal may be stated as under:

The petitioner/husband filed a Petition u/s 13(1)(ib) of Hindu Marriage Act, 1955 for dissolution of marriage on the ground of desertion. The respondent/wife entered appearance through her Advocate - Sri K Murthy. The Petition was filed before the Family Court at Bangalore and the address of the respondent is shown at Hiriyur Town. The respondent/wife did not file written statement. The petitioner filed his affidavit evidence and produced documents viz., Exs.P1 to P11. Evidence of PW1-husband was not challenged. Though the petitioner did not file a Petition for divorce u/s 13(1)(ia)(ib)(iii), the Court below has mentioned that the petitioner/husband filed a Petition for divorce u/s 13(1)(ia)(ib)(iii). Be that as it may. The petitioner/husband got married to the respondent/wife on 4.5.2006. As per Exs. P6 and P7, the respondent/wife was admitted to Bapuji Hospital at Davangere, and treated from 10.4.2007 to 28.4.2007. She has delivered a male child on 25.2.2008. As per Ex. P8, she was again admitted to Gynaecology Department of Bapuji Hospital on 2.1.2008. As per OPD record (Ex.P8), she was treated from 2.1.2008 to 30.6.2008, during which period she delivered a male child dated 25.2.2008. The Petition for divorce was filed on 11.6.2009. The respondent/wife neither filed written statement nor cross-examined P.W-1. However, the Family Court did not examine the medical reports and as to delivering a male child on 25.2.2008 etc. It is the case of the respondent/wife that after filing the case, the husband himself took her back home and then left her in her parents'' house promising that he would make a separate house and take her back, but on the other hand, he prosecuted the Petition for divorce. Atleast the Court below should have examined the documents produced and whether the petitioner/husband has proved the grounds for the dissolution of marriage. In our view, the trial Court has not properly examined the documents to hold that the respondent/wife is suffering from incurable mental disease, etc. It is a cryptic order. The Petition for divorce on the ground of desertion has been rejected, but granted divorce on the other grounds as mentioned above. The contention of the husband that he has got married to one Divya within the period of limitation of 90 days holds no water and on that score Appeal cannot be dismissed. In our view, the wife has made out a prima facie case for setting set aside the impugned judgment and decree.

For the foregoing reasons, we pass the following Order:

(i) Appeal is allowed and the impugned judgment and decree dated 25.9.2010 and 4.11.2010, respectively, made in MC No. 1570/2009 on the file II Addl. Principal Judge, Family Court at Bangalore, are set aside and the matter is remitted to the trial Court with a direction to afford an opportunity to the wife for filing written statement and cross-examine P.W-1 if he has no further evidence and dispose off the case, in accordance with law;

(ii) The parties are directed to appear before the trial Court on 3.9.2012 for further proceedings without notice; and

(iii) The respondent/husband is directed to deposit a sum of ` 10,000/-towards litigation costs in MC No. 1579/2009 on the file of II Addl. Principal Judge, Family Court at Bangalore, within 3 weeks, and intimate the same to the learned Counsel for the appellant in this case.