The sufficiency of service of notice and the determination of cruelty under section 13(1)(ia) of the Hindu Marriage Act were the central legal points established in the judgment.

JUDGMENT :

Aravind Kumar, J.

1. Wife has filed this appeal being aggrieved by the judgment and decree passed in MC No.59/2017, whereunder petition filed under Sections 13(1)(ia)(ib) of Hindu Marriage Act, 1955 (for short "the Act") came to be allowed.

2. The marriage between respondent and appellant came to be solemnized on 11.05.2015 at Gadag as per custom prevailing in their community. Out of said wedlock, a female child was born on 19.03.2016. It was the grievance of the respondent-husband that when his parents had visited his in-laws are said to have not extended proper respect and has abused them. Hence, contending that he had physically and mentally suffered, he returned back to Bijapur to look after the welfare of child and the appellant and at that point of time also wife had abused him. He further states that panchayat was held by the elders of the family as wife had without any reasonable cause had deserted him. Hence, contending that he had issued a legal notice on 20.04.2017, had filed petition in question for dissolution of his marriage solemnized on 11.05.2015.

3. Notice came to be issued by the learned trial Judge by order dated 31.05.2015 and on 21.06.2017, respondent wife was placed exparte and on the next date i.e., on 03.07.2017, evidence of petitioner came to be recorded and by judgment and decree dated 07.08.2017 allowed the petition by decreeing the same. Hence, this appeal.

4. We have heard Shri Mrutyunjaya S.Hallikeri, learned counsel appearing for appellant and Shri K.L.Patil, learned counsel appearing for respondent.

5. It is the contention of Shri Mrutyunjaya S.Hallikeri, learned counsel appearing for the appellant that trial Court erred in placing appellant ex-parte, since there is no effective service of notice and respondent being fully aware that appellant was working as a Teacher and spending her entire day at the school and would be unavailable during service of notice had intentionally not furnished the address of the school, where she was working and the registered post purported to have been sent to her residential address through Court was not served on her and only when copy of decree sent by the respondent through Whats App, she came to know about the decree and immediately she has filed the present appeal for setting aside the same. He would also contend that learned trial Judge has not passed any order with regard to permanent alimony in favour of appellant as well as maintenance to the child as required under Section 25 of the Act.

6. It is the contention of Shri Mrutyunjaya S.Hallikeri, learned counsel appearing for the appellant that very petition filed before the trial Court for dissolution of marriage itself was not maintainable and that too under Section 13(1)(ia)(ib) of the Act, since the date of marriage was 11.05.2015 and purported desertion was during the year 2017 particularly is not possible when child was born on 19.03.2016. He would also submit that necessary ingredients to prove cruelty for dissolving the marriage under section 13(1) (1a) is also conspicuously absent in the pleadings. Hence, he prays for allowing the appeal.

7. Per contra Sri K.L.Patil, learned counsel appearing for respondent husband would support the judgment passed by the trial Court and contends that notice which was sent through Court by RPAD has been returned with a postal share "unclaimed" which is deemed service and for this proposition, he relies upon section 27 of General Clauses Act and the judgment of Hon'ble Apex Court (Madan and Company Vs. Wazir Jaivir Chand, (1989) AIR SC 630). He would also submit, though petition may not be maintainable under section 13(1) (ib) of the Act, it is definitely maintainable under Section 13(1) (ia) of the Act and necessary ingredients are found in the petition. Hence, he prays for dismissing the appeal.

8. He would also submit that respondent husband after waiting for considerable length of time had got re-married on 21.06.2018 and third party rights have stepped in a