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.
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JULY, 2014
PRESENT
DR. JUSTICE K. BHAKTHAVATSALA
AND
MR. JUSTICE PRADEEP D.WAINGANKAR
M.F.A.No.22031/2013 (FC)
BETWEEN:
SMT.SAKSHI @ SHWETA SUNIL RAIKAR,Vs SRI SUNIL S/O DATTARAM RAIKAR,
Citation;AIR 2015(NOC)467 kar
This is an appeal filed under Section 19 (1) of the
Family Courts Act directed against the judgment and
decree
of
divorce
dated
06.02.2013
made
in
M.C.No.86/2012 on the file of Family Court at Belgaum.
2. Brief facts of the case leading to the filing of the
appeal may be stated as under:
The appellant (in short, ‘the wife’) got married to the
respondent (in short, ‘the husband’) on 10.7.2005. Out of
the said wedlock, she has given birth to a male child. On
26.3.2012, the respondent filed a petition under Section
13(1)(i-a) (i-b) of the Hindu Marriage Act, 1955, for
dissolution of marriage. On 26.3.2012, notice was ordered
to be issued to the wife.
As per report of the process
server dated 20.4.2012, notice sent to the wife through
court was returned unserved on the ground that she had
gone to Bangalore. On 21.4.2012, notice was reissued to
the wife by RPAD.
It was returned unserved with an
endorsement ‘refused’. The case was listed on 12.6.2012.
Since notice issued to the appellant-wife was returned as
refused, the Family Court held service of notice on the wife
was as sufficient. Counsel for the petitioner prayed time
for settlement. The case was adjourned to 5.7.2012, but
the husband and his Counsel were absent and the case
was adjourned to 30.7.2012 for settlement; on which date
the husband was present and reported no settlement. The
wife was placed exparte and the case was adjourned to
22.8.2012 for petitioner’s evidence. On 22.8.2012, the
case was adjourned to 17.9.2012. As per the order sheet
dated 17.9.2012, the husband and the wife were present.
Sri B M Chougale filed vakalath for the wife and an
application under Order IX Rule 7 of CPC was filed
praying to set aside the
ex-parte
order. The
said
application was allowed and the exparte order was set
aside and the case was adjourned to 27.9.2012 for
conciliation.
5.11.2012.
The parties were absent on 27.9.2012 and
The case was adjourned to 27.11.2012, on
which date the husband was present. The wife was
absent. The Family Court adjourned the case to 3.1.2013
for petitioner’s (husband’s) evidence observing that she did
not file objections.
present.
On 7.1.2013, the husband was
He filed an affidavit evidence.
He 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 wife was closed and adjourned the case to
21.1.2013 for arguments.
On 28.1.2013, after hearing
arguments of the Counsel for the husband, posted the
case for judgment on 6.2.2013. Accordingly, on 6.2.2013,
the Family Court allowed the Petition and dissolved the
marriage of the parties solemnised on 10.7.2005. This is
impugned in this Appeal by the wife on the following
grounds:
(i)
that she had no knowledge about the
case filed by her husband;
(ii)
that she never appeared before the
Family Court;
(iii)
that she did not engage any Counsel in
the case and file application for setting
aside the exparte order;
(iv)
that the blank vakalath taken at the
time of settlement from her for mutual
divorce has been made use of;
(v)
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,
Neelakant
she
Savanth,
engaged
Vithoba
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
(vi)
that the husband played fraud on the
Family Court and obtained the decree
of dissolution of marriage.
6
3. Sri V.M.Sheelavant, learned counsel appearing for
the appellant-wife, has urged the following additional
grounds:
(a) that when the police proceeded for arrest of
father-in-law (of the appellant) and others in
Cr.No.19/2012, they came forward for settlement
and
on
17.05.2012
the
elders
settled
that
husband has to give a flat measuring 800 to 850
sq. ft. at Belgaum, etc., and the same was
reduced in writing;
(b) that on 18.8.2012 in the presence of elders, the
parties returned the ornaments etc., and the
husband agreed to give `45 lakhs and flat and the
wife consented for mutual divorce and gave a
vakalath to the husband through one Sri Shripad
Raikar, but the wife was kept in dark as to filing
of divorce petition in M.C.No.86/2012 by the
husband.
7
(c) that the vakalath given by the wife was made use
of by the husband in the Matrimonial Case
No.86/2012 by giving it to his Counsels’ senior-
Sri B M Chougale, without her knowledge;
(d) that the wife never appeared before the Family
Court
in
17.9.2012
M
as
C
No.86/2012
she
was
in
much
less
Mangalore
on
from
16.9.2012 to 20.9.2012 for Ganesha festival; and
(e)
that when the appellant-wife requested the
husband
through
Sri
Shripad
Raikar
for
compliance of the terms of settlement, he denied
saying that he has obtained decree of divorce and
thereafter she came to know that her husband
had obtained decree of divorce in MC No.86/2012
by impersonation and playing fraud on the Court,
She filed a Private Complaint on 8.4.2014 by the
wife in P C No.174/2014 on the file of JMFC III
Court at Belgaum, against the husband and three
others, for the offences punishable under Sections
8
120B, 193, 417, 419, 426, 465 r/w Section 34 of
IPC but the same was rejected on 31.5.2014.
He submits that the impugned judgment and decree may
be set aside and the matter may be remitted to the Family
Court, for disposal of the case in accordance with law.
4. Learned counsel for the husband submits that the
grounds urged by learned counsel for the appellant-wife
are
baseless
and
contrary
to
the
record
in
M.C.No.86/2012 and that after the appeal period was
over, the husband married for the second time and there
is no merit in the appeal.
5. In view of the arguments addressed by the learned
Counsel for the parties, the only point that arises for our
consideration is:
“Whether the impugned judgment
and decree call for our interference?”
9
6. Our answer to the above point is in the affirmative
for the following reasons:
We have perused records in M C No.86/2012 on the
file of Family Court at Belgaum.
indexed.
The file has been
Computer print out of the memorandum of
divorce petition and the verifying affidavit of the husband
filed in M C No.86/2012 are at page Nos.21 to 27. At page
Nos.31, 49, 51, 53, 57, 79, 81, 83, 85 and 89 of the case
file, the following papers are available :
(a) affidavit evidence of P.W-1;
(b) application filed under Section 13
of the Family Courts 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;
10
(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,
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
11
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.
12
7. In view of the above, we pass the following order:
Appeal is allowed and the impugned judgment dated
6.2.2013 and the decree made in MC No.86/2012 on the
file of Family Court, at Belgaum, are set aside by imposing
exemplary costs of `25,000/- on the respondent/husband.
He shall deposit the same with the Family Court within
two weeks from today.
The case in M C No.86/2012 is
remitted to the Family Court at Belgaum for disposal, in
accordance with law. For the purpose of convenience and
further proceedings, the appellant and the respondent are
directed to appear before the Family Court, at Belgaum on
1.8.2014, without notice.
The Family Court, at Belgaum is directed to lodge a
complaint through its Sheristedar of the Court with the
jurisdictional Police, against the respondent/husband for
the offences punishable under Sections 193, 417, 419,
426, 464, 465 and 468 of IPC.
13
The Registry is directed to return the LCR to the
Family Court, forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
Bjs
Jm
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