Page 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-

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.

1

Page 2

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  

2

Page 3

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,  

3

Page 4

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  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  

(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  

proceeded for arrest of father-in-law of the 1st respondent-

wife and others in connection with criminal case, they came  

forward for settlement and offered to give a flat measuring  

800 to 850 sq.ft. at Belgaum, etc. and that on 18th August,  

4

Page 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  

gave a Vakalatnama to the husband through one Sri Shripad  

Raikar, but the wife was kept in dark as to the filing of  

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  

senior-Sri  B.M.  Chougale,  without  1st respondent’s  

knowledge.  She took further plea that she never appeared  

before the Family Court much less on 17th September, 2012 to  

20th 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  

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:

5

Page 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;

(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;

(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.

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:

6

Page 7

“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  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.”

9. In view of such doubt regarding filing of Vakalatnama,  

the High Court set aside the judgment and decree dated 6th  

February, 2013 passed in MC No.86/2012 by the Family Court  

at Belgaum.

7

Page 8

10. Learned counsel appearing on behalf of the appellant  

denied  the  allegation  of  fraud  played  by  the  appellant-

husband.  

11. Learned counsel appearing on behalf of the respondent  

opposed the prayer and submitted that the appellant-husband  

all the time tortured and harassed the wife-1st respondent  

for which she has also lodged a complaint before the Market  

Police Station Belgaum on 13th 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  

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.

8

Page 9

14. In the present case 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  

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  

the Family Court order dated 17th September, 2012 wherein  

the Court recorded the presence of the appellant-husband  

and  the  1st respondent-wife  and  after  hearing  their  

arguments, set aside the ex parte order and put forth the  

matter for conciliation. The relevant portion of the order  

dated 17th 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.”

9

Page 10

16. The High Court giving reference to the plaint and the  

written  statement  presumed  that  1st respondent-wife  never  

appeared before the Family Court and failed to notice the  

aforesaid  order dated  17th September, 2012  which make  it  

clear that 1st respondent-wife, who was the respondent in  

the said case, was present in the court and one Shri B.M.  

Chougale, Advocate filed Vakalatnama for the 1st respondent-

wife with permission. It is clear from the record that only  

after hearing both the parties the  ex parte  order against  

1st respondent-wife was set aside. The matter was then sent  

for conciliation to 27th September, 2012. On 27th September,  

2012 and 5th November, 2013, the parties were absent. The  

case was adjourned to 27th November, 2012 on which date the  

appellant-husband  was  present  and  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 had not filed objections. On 7th  

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.  

10

Page 11

17. It cannot be presumed that the Family Court in its  

order dated 17th September, 2012 wrongly noted the presence  

of  the  appellant-husband  and  the  1st respondent-wife.  In  

fact, this part of the order sheet has not been referred by  

the  High  Court  while  coming  to  a  conclusion  that  the  

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  

signed  by  the  1st 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.  

11

Page 12

18. For the reason aforesaid, we have no other option but  

to  set  aside  the  impugned  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). It is  

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.

12