H S UMA Vs. G K SUMANTH ARYA

JUDGEMENT

(1.) the appellant was respondent before the additional principal judge, family court, Bangalore in m.c. No. 642 of 1989 and being aggrieved by the decree of divorce granted in the said case has preferred this appeal.

(2.) parties shall hereafter be referred to with reference to their ranks in the lower court or husband and wife as the occasion may demand. The petitioner filed the petition under Section 13(l)(ia) of the Hindu Marriage Act (for short 'the act') seeking a decree for divorce to dissolve his marriage with the respondent. The case putforward by him in brief, is as follows : he married the respondent on 19-6-1988 at Bangalore and out of the said wedlock a female child was born. The respondent lived with the petitioner for a short period of only 4 to 5 months and even during the said period her actual residence with him was only for a few days as she used to go away to her parents house at viveknagar quite often and that too without the consent of either himself or his mother. She had treated him with cruelty and caused him great mental agony and physical exertion. Despite the fact that petitioner tolerated that kind of attitude on the part of his wife, she did not change her attitude towards him or towards other members of the family. She has not shown any interest in the domestic work and was also not assisting her mother-in-law in any domestic work. She used to keep herself in a room closed and whenever she was out of the room she was quarrelling cither with the petitioner or with his mother and used to create a scene by threatening that she would commit suicide. All the members of the family were always kept under tension. She had superiority complex and she was mentioning that she was a post graduate and she could earn more than Rs. 2.000/- and was staling that she would not care for any of the members of the family. One of the conditions under which he married the respondent was that she should not take up any appointment. But contrary to the assurance, she was seeking for a job and in fact had later joined as a lecturer in the vidya vardaka sangha, first grade college for women, west of chord road, Bangalore. After getting that job, she had left the company of the petitioner voluntarily and she has not shown any intention of joining him. The respondent did not even inform him about the birth of the child. She had no mind to live with the petitioner. When all the efforts to bring her around failed, he issued a legal notice dated 11 th september, 1989 and called upon her to join him or in the alternative to join him for presenting a petition for divorce by consent but she has not done either. The respondent had deprived him the love and affection of his choice. Therefore, the petitioner sought for a decree of divorce. After service of notice of the petition, the respondent entered appearance through her Advocate one Shri s.r. and the case was posted for objection and for counselling to 22-3-1990. On that day, as time was prayed for by the learned Advocate for the petitioner the case was posted for counselling to 10-4-1990. On that date the respondent was absent and objections were not filed and the case was posted to 12-4-1990. On that date again the respondent was absent. The petitioner was directed to file an affidavit in support of his case and he filed one on the next date. Subsequently by perusing the petition and the affidavit filed in support of the petition, the learned judge of the family court passed an order allowing the petition. It is being aggrieved by this order of the learned judge of the family court, the respondent has preferred this appeal.

(3.) it was contended on behalf of the appellant that her learned Advocate who was appearing in the family court could not make proper representation on her behalf on account of her personal inconvenience and the trail court without posting the matter to a further date has proceeded to pass an ex parte order and therefore the said order is liable to be set aside. It was secondly contended that under the Provisions of the Hindu Marriage Act, the court before granting the relief should make every endeavour to bring about reconciliation between the parties and the records of the family court do not indicate that any such endeavour was made by it to find out whether reconciliation could be made. It was further urged that even on the very averments made in the petition which have been again sworn to by the petitioner, there is absolutely no scope to hold that a case had been made out to grant divorce under Section 13 (l) (ia) of the Hindu Marriage Act. Therefore, it was urged that the order granting divorce should be set aside and the matter should be remitted back to the family court with a direction to afford opportunity to the appellant to file her objection statement and thereafter to give opportunity to both the sides to adduce evidence and thereafter to dispose of the case according to law.