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Friday, January 16, 2015

CIVIL APPEAL NO. 415 OF 2015 (arising out of SLP(C) No.21799 of 2014) SUNIL ... APPELLANT VERSUS SAKSHI @ SHWETA & ANR. ... RESPONDENTS

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 415 OF 2015
                  (arising out of SLP(C) No.21799 of 2014)

SUNIL                                         ... APPELLANT

                                   VERSUS
SAKSHI @ SHWETA & ANR.                  ... RESPONDENTS


                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.

      Leave granted.

2.    This appeal has been preferred by the  appellant-husband  against  the
judgment dated 9th July, 2014 passed by  the  Division  Bench  of  the  High
Court of Karnataka,  Dharwad  Bench  in  M.F.A.  No.22031/2013(FC).  By  the
impugned judgment the High Court while allowing the appeal preferred by  the
1st respondent-wife, set aside  the  decree  passed  by  the  Family  Court,
Belgaum  by  imposing  costs  of  Rs.25,000/-on  the  appellant-husband  and
directed the Family Court to lodge a complaint through  Sheristedar  of  the
Court with the jurisdictional Police against the appellant-husband  for  the
offences punishable under Sections 193, 417,419, 426,  464,465  and  468  of
IPC.

3.    The factual matrix of the case leading to the filing  of  the  present
appeal is as follows:

      The 1st respondent-wife got married to the appellant-husband  on  10th
July, 2005. Out of their wedlock, the wife had given birth to a male  child.
On 26th March, 2012, the appellant-husband filed a  petition  under  Section
13(1)(i-a) and (i-b) of the Hindu Marriage Act,  1955,  for  dissolution  of
marriage. On 26th March, 2012, notice was ordered to be issued to the  wife.
As per report of the process server dated 20th April, 2012, notice  sent  to
the wife through Court was returned unserved on  the  ground  that  she  had
gone to Bangalore. On 21st April, 2012, notice was re-issued to the wife  by
RPAD. It was returned unserved with an endorsement 'refused'.  The case  was
listed on 12th June, 2012. Since notice issued to  1st  respondent-wife  was
returned as refused, the Family Court held service of notice on the wife  as
sufficient. Counsel for the appellant-husband prayed  time  for  settlement.
The case was adjourned to 5th July, 2012, but the appellant-husband and  his
counsel were absent and the case  was  adjourned  to  30th  July,  2012  for
settlement; on which date the appellant-husband was present and reported  no
settlement. The 1st respondent-wife was placed ex parte  and  the  case  was
adjourned to 22nd August, 2012 for  appellant-husband's  evidence.  On  22nd
August, 2012, the case was adjourned to 17th September,  2012.  As  per  the
order sheet dated 17th September, 2012, the appellant-husband  and  the  1st
respondent-wife were present. Sri B.M. Chougale filed  vakalatnama  for  the
1st respondent-wife and an application under Order IX Rule 7 of  C.P.C.  was
filed praying to set aside the ex parte order dated  30th  July,  2012.  The
said application was allowed, the ex parte order was set aside and the  case
was adjourned to 27th September, 2012 for  conciliation.  The  parties  were
absent  on  27th  September,  2012  and  5th  November,  2012.The  case  was
adjourned to 27th November, 2012, on which date  the  appellant-husband  was
present. The 1st respondent-wife was absent. The Family Court adjourned  the
case to 3rd January, 2013 for appellant-husband's  evidence  observing  that
1st respondent-wife did not file  objections.  On  7th  January,  2013,  the
appellant-husband was  present.  He  filed  affidavit  evidence.  Appellant-
husband got himself examined as P.W-1 and got marked Exs.P1  to  P4.  Cross-
examination of P.W-1 was taken as nil. Evidence on the side  of  respondent-
wife was closed and adjourned the case to 21st January, 2013 for  arguments.
On 28th January, 2013, after  hearing  arguments  of  the  counsel  for  the
appellant-husband, the case was posted for judgment on 6th  February,  2013.
Accordingly, on 6th February, 2013, the Family Court  allowed  the  petition
and dissolved the marriage of the parties.

4.    The 1st respondent-wife challenged the judgment of the dissolution  of
marriage before the High Court on the following grounds:

(i)   that she had no knowledge about the case  filed by her husband;

that she never appeared before the Family Court;

that she did not engage any Counsel in the case  and  file  application  for
setting aside the ex parte order;

that the blank Vakalatnama taken at the time  of  settlement  from  her  for
mutual divorce has been made use of;

that she came to know about the decree of dissolution of marriage only  when
the husband refused to fulfil the terms of an  amicable  settlement  and  on
6.4.2013,  she  engaged  Sri.  Vithoba  Neelakant  Savanth,  Advocate,   and
obtained certified copy of the petition, entire order sheet,  deposition  of
P.W-1 and copy of the impugned judgment dated 6.2.2013; and

that the husband played fraud on the Family Court and  obtained  the  decree
of dissolution of marriage.

Additional ground was taken that when the police  proceeded  for  arrest  of
father-in-law of the 1st  respondent-wife  and  others  in  connection  with
criminal case, they came forward for settlement and offered to give  a  flat
measuring 800 to 850 sq.ft. at Belgaum, etc. and that on 18th  August,  2012
in the presence of elders, the parties  returned  the  ornaments  etc.,  the
appellant-husband agreed to give Rs.45 lakhs and flat,  the  wife  consented
for mutual divorce and gave a Vakalatnama to the  husband  through  one  Sri
Shripad Raikar, but the wife was kept in dark as to the  filing  of  divorce
petition by the husband. The said Vakalatnama alleged to have  been  misused
by the husband in the Matrimonial  Case  No.86/2012  by  giving  it  to  his
counsel's senior-Sri B.M.  Chougale,  without  1st  respondent's  knowledge.
She took further plea that she never appeared before the Family  Court  much
less on 17th  September,  2012  to  20th  September,  2012  as  she  was  in
Mangalore during the said period. Thus, it  was  alleged  that  the  husband
obtained the decree of divorce by playing fraud on the Family Court.

5.    The aforesaid submission was opposed by the counsel for the  appellant
and record of the Matrimonial Case No.86/2012 was called for.

6.    The High Court by the impugned judgment framed the following  question
for determination:

      "Whether the impugned judgment and decree call for our interference?"


7.    After perusing the records  in  MC  No.86/2012  referring  to  certain
pages of the Matrimonial Case No.86  of  2012,  the  High  Court  found  the
following papers were available:

(a)   affidavit evidence of P.W-1;

(b)   application filed under Section 13 of the  Family  Court  Act  by  the
husband seeking permission to engage the Counsel;

(c)   vakalath filed by Ms. Beena Gururaj Achar for the husband;

(d)    vakalath  filed  by  Sri  B.M.  Chougale  and  Sri  Sunil   Kakatkar,
Advocates, for the wife;

(e)   process memo;

(f)   application dated 17.9.2012 filed under Order IX Rule 7 of CPC by  the
wife;

(g)   affidavit of the wife annexed to the application;

(h)   application filed by the wife under Section 13  of  the  Family  Court
Act seeking  permission  to  engage  Counsel  to  defend  her(wife)  in  the
Matrimonial Case;

(i)   list of documents filed by the Advocate for the  husband  (but  signed
by the Advocate for the wife);

(j)   index dated 26.3.2011 filed along with the  divorce  petition  by  the
Advocate for the husband.



8.    Taking into consideration the memorandum of divorce petition filed  by
the appellant-husband and the  cause  title,  the  High  Court  doubted  the
filing of the Vakalatnama signed by the wife with  her  affidavit  and  made
the following observation:

"If these papers were to be seen  in  juxtaposition  with  page  No.21  (the
memorandum of divorce petition) particularly the  cause  title,  it  reveals
that the space, punctuation marks (like comma  and  colon)  and  underlining
used while typing the name of the Court in the cause  title  are  identical.
For the purpose of immediate reference, the same is excerpted hereunder:



       IN THE COURT OF THE JUDGE, FAMILY COURT, BELGAUM, AT : BELGAUM



There is no explanation as to how and where the papers  were  prepared.  The
above circumstances support the case  of  the  appellant/wife.  The  grounds
urged by the wife cannot be rejected. Hence, we hold  that  all  the  above-
said case papers are the print out from one and the same  computer  software
and the husband has made use of the blank vakalath signed by  the  wife  for
engaging  senior  Counsel  of  his  Advocate  and  obtained  a   decree   of
dissolution of his marriage with the appellant and to  deprive  her  rights.
Thus, it indicates that  the  respondent/husband  herein  has  played  fraud
etc., upon the Family Court so as to get a decree of divorce in  his  favour
and against the wife and it is a fit case to initiate  criminal  proceedings
against the respondent/ husband."



9.    In view of such doubt regarding filing of Vakalatnama, the High  Court
set aside the judgment and decree dated 6th  February,  2013  passed  in  MC
No.86/2012 by the Family Court at Belgaum.

10.   Learned counsel appearing  on  behalf  of  the  appellant  denied  the
allegation of fraud played by the appellant-husband.

11.   Learned counsel appearing on behalf  of  the  respondent  opposed  the
prayer and submitted that the appellant-husband all the  time  tortured  and
harassed the wife-1st respondent for which she has also lodged  a  complaint
before the Market Police  Station  Belgaum  on  13th  December,  2013  under
Section 498(A), 494, 495 r/w 34 IPC for concealment of  the  first  marriage
and marrying during the pendency of appeal leading to bigamy.

12.    After  giving  our  careful  consideration  to  the  facts  and   the
circumstances of the case and the submission made  by  the  learned  counsel
for the parties, we find that the High Court exceeded its  jurisdiction  and
recorded its finding on presumption, surmises and conjectures.

13.   The only question framed by the High Court as apparent from  paragraph
5 of the impugned judgment is "Whether  the  impugned  judgment  and  decree
call for our interference?" No question as to whether the  appellant-husband
played fraud on the Family Court and obtained the decree of  dissolution  of
marriage or whether the appellant-husband committed any  offence  punishable
under the provisions of Indian Penal Code was framed by the High Court.

14.   In the present case the main allegation made by  the  1st  respondent-
wife is that the husband played fraud on the Family Court and  obtained  the
decree of dissolution  of  marriage.  In  support  of  such  submission  she
submitted that she had not engaged any counsel in the case  and  that  blank
Vakalatnama was taken at the time of settlement  for  their  mutual  divorce
and that she never appeared before the Family Court. The High  Court  failed
to notice that this is a case in which there is a disputed question of  fact
which cannot be decided without framing a proper issue  and  in  absence  of
evidence on record.

15.   There is a disputed question of  fact  as  apparent  from  the  Family
Court order dated 17th  September,  2012  wherein  the  Court  recorded  the
presence of the appellant-husband and  the  1st  respondent-wife  and  after
hearing their arguments, set aside the ex parte  order  and  put  forth  the
matter for conciliation. The  relevant  portion  of  the  order  dated  17th
September, 2012 reads as follows:

"Ptr present

Resp present

Sri. BMC filed vakalath for resp with permission and I.A. u/O 9 R 7 CPC

Heard. IA is allowed Exparte order of resp is set aside.

For conciliation by 27-09-12."



16.   The High  Court  giving  reference  to  the  plaint  and  the  written
statement presumed  that  1st  respondent-wife  never  appeared  before  the
Family Court and failed to notice the aforesaid order dated 17th  September,
2012 which make it clear that 1st respondent-wife, who  was  the  respondent
in the said case, was present in the  court  and  one  Shri  B.M.  Chougale,
Advocate filed Vakalatnama for the 1st respondent-wife with  permission.  It
is clear from the record that only after hearing both  the  parties  the  ex
parte order against 1st respondent-wife was set aside. The matter  was  then
sent for conciliation to 27th September, 2012. On 27th September,  2012  and
5th November, 2013, the parties were absent. The case was adjourned to  27th
November, 2012 on which date the appellant-husband was present and  the  1st
respondent-wife was absent. The Family  Court  adjourned  the  case  to  3rd
January,  2013  for  appellant-husband's   evidence   observing   that   1st
respondent-wife  had  not  filed  objections.  On  7th  January,  2013,  the
appellant-husband was present. He  filed  affidavit  evidence,  got  himself
examined as P.W.-1 and got marked Exs.P1 to P4. This  fact  was  noticed  by
the High Court at paragraph 2 where brief facts of the case leading  to  the
filing of the appeal was dealt with, which in fact  has  been  reflected  in
our preceding paragraphs  wherein  factual  matrix  of  the  case  has  been
noticed.

17.   It cannot be presumed that the Family Court in its  order  dated  17th
September, 2012 wrongly noted the presence of the appellant-husband and  the
1st respondent-wife. In fact, this part of the  order  sheet  has  not  been
referred by the High Court while coming to a conclusion that the  appellant-
husband has played fraud upon the  Family  Court  as  to  get  a  decree  of
divorce in his favour. Merely, because of the fact that  print  out  of  the
case papers of both the parties have  been  taken  from  one  and  the  same
computer software it cannot be presumed that  blank  Vakalatnama  signed  by
the 1st respondent-wife was misused by the appellant-husband  or  he  played
fraud and used the same to engage some other senior  counsel.  Such  finding
of the High Court is not based on  evidence  but  on  mere  presumption  and
conjecture.



18.   For the reason aforesaid, we have no other option  but  to  set  aside
the impugned judgment dated 9th July, 2014 passed by the Division  Bench  of
the High Court of Karnataka, Dharwad Bench in M.F.A.  No.22031/2013(FC).  It
is accordingly set aside. The appeal is allowed. There shall be no order  as
to costs.

                                              ............................J.
                             (SUDHANSU JYOTI MUKHOPADHAYA)



                                               ...........................J.
                                      (N.V. RAMANA)
NEW DELHI;
JANUARY 14, 2015.


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