The duty of the court to make reasonable efforts for reconciliation in family disputes and the importance of proper service of notice before resorting to substituted service.

JUDGMENT :

Deepak Kumar Tiwari, J.

1. This Appeal has been preferred under Section 19(1) of the Family Courts Act, 1984 against the judgment dated 12.2.2016 passed by the Family Judge, Camp Court, Katghora, District Korba in Civil Suit No.78-A/2014, whereby the suit of the appellant filed under Section 13 of the Hindu Marriage Act, 1955 to dissolve the marriage with the respondent solemnized on 19.5.2013 was dismissed.

2. Perusal of the record would reveal that the appellant had filed a civil suit on 10.11.2014 and amended the address of the respondent-wife on 10.4.2015, and the case was fixed on 8.5.2015 & 10.7.2015. On both the dates, the Presiding Officer was on leave, therefore, the case was listed on 8th September, 2015. On that date, it was ordered that the non-applicant be served through ordinary and registered post and the case was fixed for appearance of the non-applicant on 8th October, 2015. On that date, the registered notice was returned with an endorsement dated 24th September, 2015 of the Postal Authorities that ‘the recipient had gone out of station’. The ordinary notice was returned with an endorsement by the Process Server Santosh Kumar that ‘proper address was not given, therefore, service could not be made’. On 8th October, 2015, the learned trial Court has entertained the application of the appellant and ordered for substituted service. The said order sheet reads thus:-

^^08-10-2015 %

vkosnd Lor% mifLFkrA

vukosfndk vfuokfgZrA

vukosnd dks tkjh jftLVMZ uksfVl bl Vhi ds lkFk vne rkfey izkIr fd izkIrdrkZ ckgj x;h gS] blfy, okil fd;k x;k rFkk lk/kj.k uksfVl bl Vhi ds lkFk vne rkfey dh izkIrdrkZ dk lgh irk ugha pykA blh Lrj ij vkosnd ds }kjk ,d vkosnu i= bl vk'k; dk is'k fd;k x;k fd mlds }kjk dbZ ckj uksfVl tkjh djok;k x;k gS] ysfdu vukosfndk uksfVl ysus ls cp jgh gS A blfy, og v[kckj ds e/;e ls vukosfndk dks uksfVl tkjh djokuk pkgrk gS] mDr vkosnu i= ij lquk x;k A

izdj.k dk voyksdu fd;k x;kA vukosfndk dks vkosnd ds }kjk mifLFkfr gsrq uksfVl tkjh djk;k tk jgk gSA tks mlds ckgj jgus vFkok lgh irk ugha gksus dh Vhi ds lkFk vne rkfey izkIr gks jgk gS] ftlls ;g nf'kZr gksrk gS fd vukosfndk uksfVl ysus ls cp jgh gSA vr% vkosnd ds }kjk is'k vkosnu i= Lohdkj fd;k tkrk gS rFkk vknsf'kr fd;k tkrk gS fd vukosfndk ds {ks= esa izpfyr nSfud lekpkj i= esa izdk'ku ds ek/;e ls tkjh djk;s] ftldk O;; vkosnd Lo;a ogu djsxkA bl gsrq vkosnd fof/kor ryokuk vnk djsA

vkxkeh frfFk vukosfndk dh mifLFkfr gsrq fnukad &17-11-2015

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3. The notice for substituted service was published in Patrika Newspaper of Bilaspur Edition on 21st October, 2015, however, the respondent did not appear on the hearing date, therefore, on 17.11.2015, the learned trial Court proceeded ex-parte. However, after taking ex-parte evidence, the Court below reached to the conclusion that the appellant has failed to prove the grounds raised by him and by the impugned judgment, his suit was dismissed against which the appellant has preferred this Appeal.

4. Under Order 5 Rule 20 of the CPC substituted service is permissible only if the Court records reasons after being fully satisfied that the service cannot be effected in ordinary manner and the defendant is keeping out of way for the purpose of avoiding service. In the present case, the Postal Authorities have returned the registered notice stating that the recipient had gone out of station and contrary to it, the Process Server has returned the ordinary notice stating that proper address was not given, therefore, the service could not be made. Considering these two different reports, this Court deems it appropriate that the trial Court should have directed for effecting summons/notice on the respondent afresh before proceeding, because there is no material on record to show that the respondent refused to receive the notice or avoided the service. So, there is no justification to resort to substituted service by way of publication.

5. In the matter of Mrs. Payal A