KANIZ AYESHA vs GOUSUDDIN

Court
Karnataka High Court

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NC: 2026:KHC-K:10980-DB
MFA No. 202073 of 2022

CNR: KAHC030061892022





IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH


TH
DATED THIS THE 6 DAY OF OCTOBER, 2026

PRESENT

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

AND

THE HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO

MISCL. FIRST APPEAL NO.202073 OF 2022 (FC)


BETWEEN:

KANIZ AYESHA W/O GOUSUDDIN,
AGE: 36 YEARS, OCC: SCHOOL TEACHER IN
SHAHEBAZ SCHOOL, E/7/3375 BILALBAD,
GESUDRAJ COLONY, KALABURAGI-585 104.
…APPELLANT

(BY SRI. SYED FAYAZUDDIN, ADVOCATE)

AND:

GOUSUDDIN S/O AZAMUDDIN,
AGE: 41 YEARS, OCC: NIL,
R/O. PLOT NO.4-601, BAREY HILLS,
GANESH NAGAR, KALABURAGI-585 104.
…RESPONDENT

(BY SRI. LIYAQAT FAREED USTAD, ADVOCATE)

THIS MFA IS FILED U/S 19 (1) OF FAMILY COURT ACT,
PRAYING TO CALL FOR THE RECORD AND SET ASIDE THE
JUDGMENT AND DECREE DATED 07.01.2022 PASSED BY THE
PRINCIPAL JUDGE FAMILY COURT AT KALABURAGI, IN O.S.
NO.21/2020 BY ALLOWING THE APPEAL AND DISMISS THE
SUIT.








Digitally
signed by
SHIVALEELA
D UDAGI
Location:
HIGH COURT
OF
KARNATAKA

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MFA No. 202073 of 2022

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
and
HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO

ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO )

This Appeal is directed against the Judgment and Decree
passed in O.S.No.21/2020, dated 07.01.2022, on the file of the
Principal Judge, Family Court, Kalaburgi (for short, ‘the Family
Court’), in allowing the suit filed by the Plaintiff and dissolving
the marriage between the Plaintiff and Defendant solemnised
on 15.11.2011 at Gulbarga.

2. For convenience, the parties are referred to as per
their rankings before the Family Court.

3. The facts, in brief, are that the Plaintiff filed
O.S.No.21/2020, stating that the Defendant is the legally
wedded wife and that their marriage was solemnised on
15.11.2011 at Gulbarga, as per Muslim law. It is stated that
the Certificate of Marriage dated 14.01.2012 was registered in

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the Quazi’s Office at Gulbarga and the Chief Quazi has issued
the Certificate certifying their marriage. It is further stated that
out of the conjugal bond, the Plaintiff and the Defendant have
three issues, i.e., two sons and a daughter.

4. The Plaintiff states that after the marriage, he went
to Muscat to work and began living there, and the Defendant
moved in with her parents to pursue further education. The
Plaintiff alleges that after completing her education, the
Defendant refused to join the matrimonial home despite the
Plaintiff's request and remained with her parents. The Plaintiff
has therefore been mentally disturbed and could not
concentrate on his job, and thereafter he left the job in the
year 2014 and came back to India to live a marital life with the
Defendant.

5. The Plaintiff alleges that the Defendant frequently

came and quarrelled with him over trivial issues and then went
back to her parents' house. The Plaintiff alleges that, in August
2015, a meeting was convened to ensure the Plaintiff and
Defendant reunited and led a marital life. However, although a

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separate house was arranged for their living, the Defendant left
the house without informing the Plaintiff. In March 2016, the
family held another meeting with well-wishers to ensure the
Defendant would return to the matrimonial home to live and
lead a marital life, but the Defendant never returned to the
Plaintiff's house.

6. The case of the Plaintiff is that the brother of the
Defendant, along with the relatives, anti-social elements,
abused the Plaintiff and cautioned with dire consequences. The
Plaintiff lodged a police complaint on 15.10.2017; the Plaintiff’s
brother-in-law was summoned and thereafter released after
being given a strict warning. In this background, the Plaintiff
has stated that, despite the Plaintiff’s best efforts, the
Defendant has refused to join the Plaintiff. The same amounted
to willful desertion, mental harassment and cruelty by the
Defendant, and the same gave rise to the issue of legal notice
dated 30.06.2020, calling upon the Defendant to accept the
divorce according to Shariat law within seven days from the
date of receipt of legal notice, and the Plaintiff is ready to fulfil
all the obligations provided under Shariat law. The Defendant,

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though received legal notice on 04.07.2020, has failed to
respond to the same. Accordingly, the Plaintiff was constrained
to file suit for dissolution of marriage.

7. After service of the suit summons, the Defendant
appeared through counsel and filed a written statement. The
Defendant denied the plaint averments, except admitting the
relationship with the Plaintiff and the three issues born of their
wedlock.

8. Based on the parties' pleadings, the Family Court
framed the issues, and the Plaintiff examined himself as PW1
and marked Exs.P1 to P3 in support of his contentions.
However, the Defendant was not examined by entering the
witness box, and no documents were marked in support of her
case.

9. Having regard to the documents on record and the
plaint averments, the Family Court proceeded to decree the suit
with costs and, further, dissolved the marriage between the
Plaintiff and the Defendant, solemnised on 15.11.2011, by the

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judgment dated 07.01.2022. It is this judgment and decree
passed by the Family Court that is under challenge in the
present appeal.

10. The learned counsel for the appellant contends that
the Defendant did not participate in the proceedings for several
reasons, including health issues, as stated in para 8 of the
Appeal Memorandum. It is further submitted that the counsel
who used to represent the Defendant could not inform the
Defendant about the progress of the case, and due to ill-health
of the counsel and hospitalization, the appellant-Defendant
herein could not take part in the proceedings and could not
lead any evidence on her behalf, opposing the suit filed by the
respondent-Plaintiff herein. Learned counsel further submits
that if the appellant is given an opportunity, she will use it to
lead evidence on her behalf, and documents will be marked in
support of her contentions. Learned counsel further submits
that the vakalat on behalf of the Appellant-Defendant was filed
by Nasir Ahmed Ansari, whereas the Family Court has recorded
the name of Sri Noor Ahmed Ansari as representing the

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appellant-Defendant. Accordingly, learned counsel seeks to
allow the appeal.

Per contra
11. , learned counsel for the Respondent-
Plaintiff would support the Family Court’s judgment and order
decreeing the suit and dissolving the marriage solemnised on
15.11.2011. Learned counsel further submits that sufficient
opportunity was given to the appellant-Defendant to lead
evidence. However, the said opportunity was not utilised; thus,
the judgment and order passed by the Family Court does not
warrant interference by this Court.

12. We have heard the learned counsel for the
Appellant and the Respondent and perused the documents
available on record.

13. In the light of the submissions made by the
respective counsels, the point that would arise for our
consideration is:
i) Whether the judgment and decree
passed by the Family Court calls for
interference in the present Appeal?

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14. The answer to point No.1 is in the affirmative for
the following:
R E A S O N S
15. It is undisputed that, in the suit filed by the
Respondent-Plaintiff in O.S. No.21/2020, the Appellant-
Defendant filed a written statement denying the plaint
averments. Nevertheless, the Appellant-Defendant has not led
any evidence by entering into the witness box or marking
documents in support of her case as pleaded in the written
statement. The Family Court in the judgment and decree has
gone on recording submissions made on behalf of the Plaintiff
and also relevant documents relied upon in support of the case
of the Plaintiff. However, the documents produced and marked
as Ex.P1 to P3 were not discussed in detail, except for a mere
reference to their production.

16. Further, the Family Court observed that the
Defendant, except for filing a written statement, has not
adduced any evidence despite being given sufficient
opportunity, and further stated that the Appellant-Defendant
has not been cross-examined. Except for the aforesaid

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observation, the Family Court has not given any reason of its
own to entertain the suit for dissolution of marriage.

17. It is well settled law that a person who approaches
the Court must establish his case to obtain relief from the
Court. It is also well-settled law that even in the absence of
filing a written statement, examination of witnesses, or
marking of documents by the Defendant, the Plaintiff must
establish his case, not on the weakness or lacuna of the
Defendant.

18. The Hon'ble Supreme Court in the case of Union of
India and others vs Vasavi Co-op. Housing Society Ltd.
1
and others , categorically declared that the burden or onus
lies on the Plaintiff, and the suit cannot be decreed without
examining the veracity of the averments in the plaint and the
documents placed on record by the Plaintiff. In other words, the
Plaintiff must establish his case through independent witnesses,
supported by corroborating documents and oral testimony. In
that view, the Family Court, except recording that the

1
2014 (2) SCC 269

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Appellant-Defendant has not adduced evidence, failed to
examine whether the Respondent-Plaintiff has indeed
established his case for the relief sought in the suit. Though the
Respondent-Plaintiff has adduced evidence, no independent
witnesses have been examined to support his case.

19. In the light of the foregoing reasons recorded
hereinabove, we are inclined to interfere with the judgment and
decree passed by the Family Court, only on the limited ground
of remanding the matter back to the Family Court to enable the
Appellant-Defendant herein to lead evidence and also mark
documents, if any, in support of her claim. Only to that extent,
the appeal must be allowed.

20. Hence, we proceed to pass the following:
ORDER
(i) The Appeal is allowed;
(ii) The Judgment and Decree passed in
O.S.No.21/2020, dated 07.01.2022, on the file
of the Principal Judge, Family Court, Kalaburgi,
is set aside .

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(iii) The O.S.No.21/2020 is restored to its original
file.
(iv) The parties are directed to appear before the
Prl. Judge, Family Court, Kalaburagi on
11.11.2026 .
(v) It is made clear that this Court has not
adjudicated on the merits of the issue.
(vi) All the contentions of the parties are kept open.
(vii) Registry is directed to transmit the records to
the Prl. Judge, Family Court, Kalaburagi,
forthwith.


Sd/-
(ASHOK S. KINAGI)
JUDGE


Sd/-
(SUBRAMANYA RANGARAO)
JUDGE

SDU
LIST NO.: SL NO.:
CT: AK