(Prayer: This Miscellaneous First Appeal Is Filed Under Section 28 Of The Hindu Marriage Act, 1955, Praying To Set Aside The Judgement And Decree Dated 30.09.2011, Passed In M.C. No.28/2010, By The Senior Civil Judge, Hukkeri, Allowing The Petition Filed Under Section 13(IA) (IB) Of Hindu Marriage Act 1976, Etc.,.)
1. The appellant is before this Court assailing the judgment dated 30.9.201 1, passed in M.C.No.28/20 10, by the Senior Civil Judge, Hukkeri.
2. The fact that the appellant and the respondent are wife and husband respectively and that their marriage was solemnized on 24.3.1986 is not in dispute. Due to certain differences between them, the respondent herein has filed a petition in M.C.No.28/2010 under Section 13(ia) and (ib) of the Hindu Marriage Act, 1955, seeking dissolution of marriage. The Court below, by the impugned judgment has allowed the petition and ordered the dissolution of the marriage between the petitioner and the respondent. The appellant is therefore before this Court. The respondent though served is unrepresented.
3. We have heard the learned counsel for the appellant and perused the appeal papers including the judgment impugned as also the records received from the Court below.
4. Before adverting to the contention put forth by the learned counsel for the appellant with regard to the merits of the case whereby the learned counsel would contend that both the grounds of desertion as well as cruelty were not made out, the additional contention which was raised with regard to the proceedings not being conducted by the Court as required under the provisions of the Act and also the manner in which the evidence was recorded requires to be noticed.
5. Firstly, it is necessary to be noticed that, before the Court below the appellant herein has not filed the objection statement nor cross examined the respondent or the witnesses examined on his behalf neither has evidence been tendered. Though in a normal circumstance a strict view of the matter can also be taken keeping in view the provisions of the Civil Procedure Code, it is also necessary to keep in view that in a matrimonial proceedings human relations are to be considered. At the first instance notwithstanding whether the objection's are put forth or the evidence is tendered, the trial Court would also have to follow the procedural requirements and appropriate decision has to be taken. To the said extent as rightly pointed out by the learned counsel for the appellant, the provisions contained in Section 23 of the Hindu Marriage Act would provide for bringing about the conciliation between the parties before the matter is taken up for evidence.
6. From the order sheet which is available in the records of the trial Court it is seen that, after the notice has been served on the appellant herein who was the respondent therein, no such effort has been made by the Court below. But the matter had been listed for evidence of the petitioner therein i.e., the respondent herein. Further the evidence of PW.1 for the purpose of recording submission of the affidavit and marking the documents was made. Thereafter it was adjourned for further evidence of PW.1. From the order sheet it is seen that on 2.7.2011 and 29.7.201 1 it has been recorded that PW.1 has remained absent. However when the matter was listed on 6.8.2011, the Court below has accepted the application filed and the evidence of PW.2 who had presented the affidavit has been taken on record and recorded that he has been examined fully on the same day. It was also recorded that it is adjourned to 26.8.201 1 for further chief of PW.1. On 26.8.201 1 it is recorded that PW.1 is absent and on 9.9.2011 it is once again recorded that PW.1 is fully examined. Though in the order sheet it is recorded that PW.2 was examined fully, it is prior to completion of the further examination of PW.1 and in that regard had thereafter adjourned the matter for further examination of PW.1 and it was indicated as examined fully. The order sheet does not disclose that either the matter has been listed permitting the appellant herein to cross examine the said witnesses or for respondents evidence. It is no doubt true that in the deposition sheet it has been recorded that the appellant herein who is the respondent therein was absent and the cross examination has not been done. As already noticed, the present proceedings was matrimonial dispute between the parties. In such circumstance the Court below ought to have at least granted an opportunity to cross examine the said witnesses though she he had not filed her objections to the main petition. Further more, after the trial Court has recorded that the examination of PW.2 and PW.1 has been completed, the matter has also not been listed for evidence of the respondent.
7. These aspects would indicate that the proceedings conducted by the Court below admits of several irregularities and in such circumstance where the appellant herein is aggrieved by the judgment, even in the circumstance where she had not at the first instance filed her objection statement, we are of the opinion that the matter requires reconsideration by the Court below after providing an opportunity to the parties and conducting the proceedings as per the procedure contemplated in law. We have also noticed that the evidence of PW.1 and 2 by way of affidavit has not been served on the respondent, as the same has not been recorded in the order sheet.
8. In that view of the matter, the appeal is allowed and the impugned judgment dated 30.9.2011 is set aside. The proceedings in M.C.No.28/2010 is restored to the file of the Senior Civil Judge, Hukkeri. The Court below shall issue fresh notice/summons to both the parties and thereafter reconsider the matter afresh in accordance with law. The appellant herein is also granted an opportunity of filing objections to the petition before the Court below. All the contentions on merits are left open to be urged before the Court below.