ALLEGATION
THAT THE APPELLANT HUSBAND PLAYED FRAUD ON THE FAMILY COURT AND OBTAINED DECREE
OF DISSOLUTION OF MARRIAGE
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. The notice issued to 1st
respondent-wife was retuned as refused, the Family Court held service of notice
on the wife as sufficient. The 1st respondent-wife was placed ex
parte and the case was adjourned. The first respondent-wife’s counsel filed
vakalathnama and an application under Order IX, Rule 7 of C.P.C, the said
application was allowed, the ex parte order was set aside. The 1st
respondent-wife was absent and evidence was closed. 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, the family Court allowed the petition and dissolved the
marriage of the parties.
The
1st respondent-wife challenged the judgement of the dissolution of
marriage before the High Court on the grounds of fraud.
The
main allegation made by the 1st respondent-wife is that the husband
played fraud on the Family Court and obtained the decree of dissolution of
marriage. In support of such submission, she submitted that she had not engaged
any Counsel in the case and that blank Vakalathnama was taken at the time of
settlement for their mutual divorce and that she never appeared before the
Family Court.
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. 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 faming a proper issue and in absence of evidence on record.
Consequently the Hon’ble Supreme Court had set aside the impugned judgement
passed by the Division Bench of the High Court of Karnataka and thereby the
appellant-husband appeal was allowed. [Sunil Vs. Sakshi@Shweta].
