SUNIL vs. SAKSHI @ SHWETA

1 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- th husband against the judgment dated 9 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 JUDGMENT the High Court while allowing the appeal preferred by the st 1 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. Page 1 2 3. The factual matrix of the case leading to the filing of the present appeal is as follows: st The 1 respondent-wife got married to the appellant-

appellant-husband filed a petition under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, for dissolution th of marriage. On 26 March, 2012, notice was ordered to be issued to the wife. As per report of the process server th dated 20 April, 2012, notice sent to the wife through Court was returned unserved on the ground that she had gone st to Bangalore. On 21 April, 2012, notice was re-issued to the wife by RPAD. It was returned unserved with an th endorsement ‘refused’. The case was listed on 12 June, st 2012. Since notice issued to 1 respondent-wife was JUDGMENT 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 th adjourned to 5 July, 2012, but the appellant-husband and th his counsel were absent and the case was adjourned to 30 July, 2012 for settlement; on which date the appellant- st husband was present and reported no settlement. The 1 respondent-wife was placed ex parte and the case was nd adjourned to 22 August, 2012 for appellant-husband’s Page 2 3 nd evidence. On 22 August, 2012, the case was adjourned to th th 17 September, 2012. As per the order sheet dated 17 st September, 2012, the appellant-husband and the 1

under Order IX Rule 7 of C.P.C. was filed praying to set th aside the ex parte order dated 30 July, 2012. The said application was allowed, the ex parte order was set aside th and the case was adjourned to 27 September, 2012 for th conciliation. The parties were absent on 27 September, th th 2012 and 5 November, 2012.The case was adjourned to 27 November, 2012, on which date the appellant-husband was st present. The 1 respondent-wife was absent. The Family rd Court adjourned the case to 3 January, 2013 for appellant- st husband’s evidence observing that 1 respondent-wife did th not file objections. On 7 January, 2013, the appellant- JUDGMENT 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 st and adjourned the case to 21 January, 2013 for arguments. th On 28 January, 2013, after hearing arguments of the counsel for the appellant-husband, the case was posted for th th judgment on 6 February, 2013. Accordingly, on 6 February, Page 3 4 2013, the Family Court allowed the petition and dissolved the marriage of the parties. st 4. The 1 respondent-wife challenged the judgment of 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 ex parte order; (iv) that the blank Vakalatnama 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, 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 JUDGMENT (vi) 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 st proceeded for arrest of father-in-law of the 1 respondent- wife and others in connection with criminal case, they came forward for settlement and offered to give a flat measuring th 800 to 850 sq.ft. at Belgaum, etc. and that on 18 August, Page 4 5 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

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 st senior-Sri B.M. Chougale, without 1 respondent’s knowledge. She took further plea that she never appeared th before the Family Court much less on 17 September, 2012 to th 20 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 JUDGMENT 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: Page 5 6 (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;

(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); JUDGMENT (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: Page 6 7

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.” JUDGMENT 9. In view of such doubt regarding filing of Vakalatnama, th the High Court set aside the judgment and decree dated 6 February, 2013 passed in MC No.86/2012 by the Family Court at Belgaum. Page 7 8 10. Learned counsel appearing on behalf of the appellant denied the allegation of fraud played by the appellant- husband.

st all the time tortured and harassed the wife-1 respondent for which she has also lodged a complaint before the Market th Police Station Belgaum on 13 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 JUDGMENT 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. Page 8 9 st 14. In the present case the main allegation made by the 1 respondent-wife is that the husband played fraud on the Family Court and obtained the decree of dissolution of

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 th the Family Court order dated 17 September, 2012 wherein the Court recorded the presence of the appellant-husband st and the 1 respondent-wife and after hearing their JUDGMENT arguments, set aside the ex parte order and put forth the matter for conciliation. The relevant portion of the order th dated 17 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.” Page 9 10 16. The High Court giving reference to the plaint and the st written statement presumed that 1 respondent-wife never appeared before the Family Court and failed to notice the

the said case, was present in the court and one Shri B.M. st Chougale, Advocate filed Vakalatnama for the 1 respondent- wife with permission. It is clear from the record that only after hearing both the parties the ex parte order against st 1 respondent-wife was set aside. The matter was then sent th th for conciliation to 27 September, 2012. On 27 September, th 2012 and 5 November, 2013, the parties were absent. The th case was adjourned to 27 November, 2012 on which date the st appellant-husband was present and the 1 respondent-wife rd was absent. The Family Court adjourned the case to 3 January, 2013 for appellant-husband’s evidence observing JUDGMENT st th that 1 respondent-wife had not filed objections. On 7 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. Page 10 11 17. It cannot be presumed that the Family Court in its th order dated 17 September, 2012 wrongly noted the presence st of the appellant-husband and the 1 respondent-wife. In

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 st signed by the 1 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. JUDGMENT Page 11 12 18. For the reason aforesaid, we have no other option but th to set aside the impugned judgment dated 9 July, 2014

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. JUDGMENT Page 12