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2015 Supreme(SC) 36
SUPREME COURT OF INDIA
SUDHANSU JYOTI MUKHOPADHAYA, N.V. RAMANA, JJ.
SUNIL – APPELLANT
VERSUS
SAKSHI @ SHWETA & ANOTHER – RESPONDENTS
Civil Appeal No. 415 of 2015 (Arising out of SLP(C) No. 21799 of 2014)
Decided On : 14-01-2015
IMPORTANT POINT
Judgment based on presumptions and surmises cannot be sustained.
Headnote:(a) Administration of Justice – Judicial propriety – High Court framing only one question "Whether the impugned judgment and decree call for our interference?" – No question as to playing fraud by appellant-husband on Family Court, or whether the appellant-husband committed any offence punishable under the provisions of Indian Penal Code framed – Yet High Court held that appellant-husband played fraud on Family Court and so directed initiation of criminal proceedings against him – High Court exceeding its jurisdiction and recording its finding on presumption, surmises and conjectures. (Para 12, 13)
(b) Administration of Justice – Judicial propriety – Respondent wife raising disputed questions of fact – Family court recording presence of respondent wife – Respondent wife claiming she never went to Family court – Cannot be decided without framing a proper issue and in absence of evidence on record – High Court doing the same on mere presumption and conjecture – Not tenable. (Para 14, 15, 16, 17)
Facts of the case:
The 1st respondent-wife got married to the appellant-husband on 10th July, 2005. Out of their wedlock, the wife had given birth to a male child. On 26th March, 2012, the appellant-husband filed a petition under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, for dissolution of marriage.
Family court decreed the petition and granted divorce.
High Court while allowing the appeal preferred by the 1st respondent-wife, set aside the decree passed by the Family Court 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.
Finding of the Court:
Impugned order is not sustainable being based on presumptions and surmises.
Result: Appeal allowed.
JUDGMENT
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
2. This appeal has been preferred by the appellant-husband against the judgment dated 9th 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 the High Court while allowing the appeal preferred by the 1st 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.
3. The factual matrix of the case leading to the filing of the present appeal is as follows:
The 1st respondent-wife got married to the appellant-husband on 10th July, 2005. Out of their wedlock, the wife had given birth to a male child. On 26th March, 2012, the appellant-husband filed a petition under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, for dissolution of marriage. On 26th March, 2012, notice was ordered to be issued to the wife. As per report of the process server dated 20th April, 2012, notice sent to the wife through Court was returned unserved on the ground that she had gone to Bangalore. On 21st April, 2012, notice was re-issued to the wife by RPAD. It was returned unserved with an endorsement 'refused'. The case was listed on 12th June, 2012. Since notice issued to 1st respondent-wife was 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 adjourned to 5th July, 2012, but the appellant-husband and his counsel were absent and the case was adjourned to 30th July, 2012 for settlement; on which date the appellant-husband was present and reported no settlement. The 1st respondent-wife was placed ex parte and the case was adjourned to 22nd August, 2012 for appellant-husband's evidence. On 22nd August, 2012, the case was adjourned to 17th September, 2012. As per the order sheet dated 17th September, 2012, the appellant-husband and the 1st respondent-wife were present. Sri B.M. Chougale filed vakalatnama for the 1st respondent-wife and an application under Order IX Rule 7 of C.P.C. was filed praying to set aside the ex parte order dated 30th July, 2012. The said application was allowed, the ex parte order was set aside and the case was adjourned to 27th September, 2012 for conciliation. The parties were absent on 27th September, 2012 and 5th November, 2012.The case was adjourned to 27th November, 2012, on which date the appellant-husband was present. The 1st respondent-wife was absent. The Family Court adjourned the case to 3rd January, 2013 for appellant-husband's evidence observing that 1st respondent-wife did not file objections. On 7th January, 2013, the appellant-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 and adjourned the case to 21st January, 2013 for arguments. On 28th January, 2013, after hearing arguments of the counsel for the appellant-husband, the case was posted for judgment on 6th February, 2013. Accordingly, on 6th February, 2013, the Family Court allowed the petition and dissolved the marriage of the parties.
4. The 1st respondent-wife challenged the judgment of the dissolution of marriage before the High Court 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 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
