SUNILversusSAKSHI @ SHWETA & ANR.

                        [2015] 1 S.C.R. 700


A                               SUNIL
                                   v.
                    SAKSHI @ SHWETA & ANR.
                   (Civil Appeal No. 415 of 2015)
                         JANUARY 14, 2015
B
           [SUDHANSU JYOTI MUKHOPADHAYA AND
                    N.V. RAMANA, JJ.]

        Family law: Divorce petition by appellant-husband -
C Respondent-wife proceeded ex parte - Ex parte order set
    aside and case adjourned for conciliation - Next hearing, wife
    again remained absent- Divorce decree - Challenged by wife
    in High Court on the ground that the divorce decree was
    obtained by husband by playing fraud on court and she never
D   appeared before the court nor she had knowledge about the
    case filed by husband - Family Court order sheet dated
    17. 9. 2012 showed the presence of appellant-husband and
    wife - High Court framed the question as to whether the
    impugned judgment and decree called for interference - High
E   Court doubted the filing of the Vakalatnama signed by the wife
    with her affidavit and in view of such doubt, set aside the
    divorce decree - Held: No question as to whether the
    appellant-husband played fraud on the Family Court and
    obtained the decree of dissolution of marriage was framed by
F   the High Court - There was a disputed question of fact f!S
    apparent from the Family Court order dated 17.9.2012
    wherein the Court recorded the presence of both the parties
    and after hearing their arguments, set aside the ex parte order
    and put forth the matter for conciliation - High Court failed to
G   notice that it was a case in which there was a disputed question
    of fact which cannot be decided without framing a proper issue
    and in absence of evidence on record - Finding of High Cowt
    was not based on evidence but on mere presumption and
    conjecture - Impugned order is set aside.

H                                 700
        SUNIL v. SAKSHI @ SHWETA & ANR                  701


    Allowing the appeal, the Court                              A

      HELD: 1. The High Court exceeded its jurisdiction
and recorded its finding on presumption, surmises and
conjectures. The High Court giving reference to the plaint
and the written statement presumed that 1st respondent-         B
wife never appeared before the Family Court and failed
to notice order dated 17th September, 2012 which made
it clear that 1st respondent-wife, who was the respondent
in the said case, was present in the court and one Shri
8.M. Chougale, Advocate filed Vakalatnama for her with          C
permission. 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 was
not referred by the High Court while coming to a
conclusion that the appellant-husband has played fraud          D
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-            E
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 was not based
on evidence but on mere .presumption and conjecture.
The impugned judgment is set aside. [Paras 12, 16 to 18]        F
[706-E; 707-F-H; 708-E-G]

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 415
of 2015.

     From the Judgment and Order dated 09.07.2014 of the        G
High Court of Karnataka Bench at Dharwad in MFA No. 22031
of 2013.

    K. Raghavacharyulu, Devadatt Kamat, Rajesh leramdar,
Gautam Talukdar for the Appellant.                              H
    702       SUPREME COURT REPORTS               [2015] 1 S.C.R.


A       S. S. Javali, F. S. Patil, Ananta Narayan, Ankolekar
    Gurudatta, Anitha Shenoy for the Respondents.

          The Judgment of the Court was delivered by.

       SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave
B granted.

       2. This appeal ha·s 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
c 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
D 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
E 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-
F 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
G 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
H , on the wife as sufficient. Counsel for the appellant-husband
        SUNIL v. SAKSHI @ SHWETA & ANR                    703
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
prayed time for settlement. The case was adjourned to 5th July,   A
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               B
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        c
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
                                                                  D
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 a~journed
the case to 3rd January, 2013 for appellant-husband's evidence
observing that 1st respondent-wife did not file objections. On
                                                                  E
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     F
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.
                                                                  G
    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     H
    704          SUPREME COURT REPORTS              (2015] 1 S.C.R.


A                 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
B                 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.

C        6. The High Court by the impugned judgment framed the
    following question for determination:

          "Whether the impugned judgment and decree call for our
          interference?"
D
         7. After perusing the records in MC No.86/2012 referring
    to certain pages of the Matrimonial Case No.86 of 2012, the
    High Cou.
            ... rt found the following papers were available:
           (a)    affidavit evidence of P. W-1;
E
           (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
F                 husband;

           (d)    vakalath filed by Sri B.M. Chougale and Sri Sunil
                  Kakatkar, Advocates, for the wife;

           (e)    process memo;
G
           (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
        SUNIL v. SAKSHI @ SHWETA & ANR                     705
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     (h)   application filed by the wife under Section 13 of       A
           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         8
           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       C
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:

    "If these papers were to be seen in juxtaposition with page
                                                                   0
    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:                                   E

     IN THE COURT OF THE JUDGE, FAMILY COURT,
     BELGAUM, AT : BELGAUM

     There is no explanation as to how and where the papers        F
     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         G
     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
                                                                   H
    706       SUPREME COURT REPORTS               [2015] 1 S.C.R.

A         Courl 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
8   February, 2013 passed in MC No.86/2012 by the Family Court
    at Belgaum.

         10. Learned counsel appearing on behalf of the appellant
    denied the allegation of fraud played by the appellant-husband.
c
         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,
0
    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
E 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.

F       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
G 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.

       14. In the present case the main allegation made by the
  1st respondent-wife is that the husband played fraud on the
H Family Court and obtained the decree of dissolution of
        SUNIL v. SAKSHI @ SHWETA & ANR                        707
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
marriage. In support of such submission she submitted that she        A
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        B
framing a proper issue and in absence of evidence on record.

     15. There is a disputec1 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          C
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                                                     D
     Resp present

     Sri. BMC filed vakalath for resp with permission and I.A.
     u/O 9 R 7 CPC
                                                                      E
     Heard. IA is allowed Exparte order of resp is set aside.

     For conciliation by 27-09-12."

      16. The High Court giving reference to the plaint and the
written statement presumed that 1st respondent-wife never             F
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
sa·id case, was present in the court and one Shri B.M.
Chougale, Advocate filed Vakalatnama for the 1st respondent-          G
wife with permission. It is clear from the record that only after
hearing both the parties the ex pa rte 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             H
    708        SUPREME COURT REPORTS              [2015] 1 S.C.R.


A 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,
B 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 lee1ding to the filing
  of the appeal was dealt with, which in fact has been reflected
c in our preceding paragraphs wherein factual matrix of the case
  has been noticed.

        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
D of the order sheet has not been referred by the High Court while
  coming to a conclusion that the appella(lt-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
E 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
F presumption and conjecture.

       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,
G 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.
    Devika Gujral                                     Appeal allowed.