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2019 Supreme(Kar) 1050
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
B.A. PATIL, BELLUNKE A.S., JJ.
Chittemma Alias Mahadevi D/o Late Nagendrappa - Appellant
Versus
A. Mallikarjuna - Respondent
Miscellaneous First Appeal No. 102839 of 2015, 101732 of 2017
Decided On : 18-06-2019
Advocate Appeared:
B.S. Sangati, Adv., Ravi Hegde, Adv., Ravi S. Hegde, Adv.
The main legal point established is the importance of proper service of summons in divorce cases and the duty of the Court to ensure reconciliation and proper examination of evidence before granting a decree of divorce.
Headnote:
Divorce - Service of Summons - Hindu Marriage Act - Order IX Rule 13 of CPC - [DIVORCE] - [SERVICE OF SUMMONS] - [Hindu Marriage Act, Section 13(1)(ib); CPC, Order 5] - The court discussed the proper service of summons on the appellant-wife in Mat.Case No.318/2013 and the grounds for setting aside the exparte judgment and decree. The court highlighted the importance of proper service of summons and the failure of the trial Court to verify the service of notice. It emphasized the need for reconciliation in divorce cases and the duty of the Court to ensure proper examination of evidence before granting a decree of divorce. The court also referred to relevant provisions of the Hindu Marriage Act and CPC, emphasizing the procedural requirements for service of summons and the consequences of improper service.
Fact of the Case:
The husband filed a divorce petition on the ground of desertion by the wife. The wife contested the divorce and filed a miscellaneous case to set aside the exparte judgment and decree, claiming improper service of summons.
Finding of the Court:
The court found that the trial Court failed to verify the proper service of summons on the appellant-wife and hastily disposed of the matter. It emphasized the duty of the Court to ensure proper examination of evidence before granting a decree of divorce.
Issues: 1. Proper service of summons on the appellant-wife in Mat.Case No.318/2013. 2. Setting aside the exparte judgment and decree based on improper service of summons.
Ratio Decidendi: The court emphasized the importance of proper service of summons and the duty of the Court to ensure reconciliation in divorce cases. It highlighted the failure of the trial Court to verify the service of notice and the procedural requirements for service of summons under the Hindu Marriage Act and CPC.
Final Decision: The appeals filed by the appellant-wife were allowed, and the judgment and decree in Mat.Case No.318/2013 and the order in Civil Misc. Case No.7/2014 were set aside. The matter was remitted back to the Court below for further proceedings.
JUDGMENT :
A.S. BELLUNKE, J.
1. Miscellaneous First Appeal No.102839 of 2015 is filed by the wife against the judgment and decree dated 28.01.2014 passed by the Principal Judge, Family Court, Bellary, passed in MC No.318 of 2013. Miscellaneous First Appeal No.101732 of 2017 is also preferred by the wife against the order dated 10.07.2015 passed by the Principal Judge, Family Court, Ballari, in Civil Misc. Case No.7 of 2014. Since the subject matter involved in both the appeals are interconnected with other in order to avoid repetition of facts and issues involved, both the cases are taken up together and dispose of by this common judgment.
2. Brief facts of the case are as under:
The appellant and respondent are wife and the husband. The respondent-husband had filed the divorce petition before Family Court, Ballary, in M.C.No.318/2013 under Section 13(1)(ib) of Hindu Marriage Act on the ground that the appellant-wife had voluntarily deserted her husband for a period of more than two years without any lawful excuse. All efforts made by the husband to get back his wife did not yield any result. The wife was acting to the words of her parents. She had left matrimonial house without any information.
3. Further, alleged that, she had filed a false complaint against the husband and his family members in S.C.No.82/2006. Subsequently, the respondent and his family members acquitted. Hence, on these grounds, he has been filed the petition for divorce.
4. The trial Court issued notice to the respondent-wife. In spite of service of notice, she did not appear before the Court. Therefore, she was placed exparte. The trial Court recorded the evidence of petitioner PW1 and the witnesses as PW2 and 3. Documents got marked at Ex.P1 to 5. After hearing the petitioners the Family Court Judge passed the impugned order allowing the divorce petition filed under Section 13(1)(ib) of the Hindu Marriage Act. Consequently, the marriage dated 08.08.2003 between the respondent-petitioner and the appellant-wife came to be dissolved by decree of divorce.
5. The appellant-wife had filed a miscellaneous case before the trial Court in Civil Misc.No.7/2014 under Order IX Rule 13 of CPC r/w Section 21 of Hindu Marriage Act, to set aside exparte judgment and decree passed in Mat.Case No.318/2013.
6. The bone of contention of appellant-wife is that she was not served a notice in the petition for divorce. The contention of the husband was that notice was served on the appellant-wife through RPAD. She had refused to receive the notice. Therefore, the service of notice on appellant-wife was held proper by the Family Court. Consequently, the decree came to be passed against the appellant-wife.
7. The learned Judge held the trial of the Misc. case in No.7/2014 and found that there are no sufficient grounds to set aside the judgment and decree passed in the divorce petition in Mat.Case No.318/2013. Consequently, petition came to be dismissed. Therefore, the above two appeals came to be filed challenging the impugned orders on following grounds:
1. The impugned order allowing the petition filed by the respondent-husband is contrary to law and facts of the case, the reasoning given by the family court for allowing the respondent's petition is based only on contention of the respondent-husband.
2. Family court erred in not verifying whether the notice is served to the appellant in Mat.C.No.318/2013, properly or not?
3. The appellant-wife did not receive any notice either through court or through registered post about filing of Mat.C.No.318/2013 by the respondent. No process server or the Postman approached her to serve any such notices.
4. The appellant after verification came to know that the concerned postman has returned the registered notice with shara as "party refused" the date of refusal is not mentioned in the postal cover. The concerned postman did not kept postal cover for seven days as contemplated under postal rules and has violated the procedural aspects. It is crystal c
