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2019 Supreme(Raj) 814
IN THE HIGH COURT OF RAJASTHAN BENCH AT JAIPUR
Mohammad Rafiq, Narendra Singh Dhaddha, JJ.
Tavindar Kaur - Appellants
Vs.
Harinder Singh - Respondent
D.B. Civil Miscellaneous Appeal No. 3893 of 2019
Decided On : 19-08-2019
For the Appellant : Akash Gupta for B.L. Agarwal
For the Respondents: P.S. Sharma and Dharmendra Joshi
In matrimonial disputes, courts should adopt a liberal view and not allow technicalities to defeat the rights of the parties.
Headnote:
Divorce - Cruelty - The court set aside the ex parte judgment and decree on the ground that the appellant was out of station for medical treatment and the summon was not personally served upon her, thus adopting a liberal view in place of a hyper-technical approach.
Fact of the Case:
The appellant filed for divorce on the ground of cruelty, claiming that the appellant wife denied physical relationship and treated him with cruelty. The Family Court allowed the divorce petition in an ex parte proceeding as the appellant wife was deemed to be out of city for medical treatment.
Finding of the Court:
The court found that the ex parte judgment was not sustainable as the appellant was out of station for medical treatment and the summon was not personally served upon her. The court set aside the impugned order and remanded the matter back to the Family Court.
Issues: The main issue was whether the ex parte judgment and decree should be set aside due to the appellant's absence for medical treatment and the lack of personal service of the summon.
Ratio Decidendi: The court adopted a liberal view in matrimonial disputes, emphasizing that rights of the parties should not be defeated by technicalities. It held that the summon was not personally served upon the appellant due to her absence for medical treatment, rendering the ex parte order unsustainable.
Final Decision: The appeal was allowed, the impugned order was set aside, and the matter was remanded back to the Family Court for further proceedings.
Key Points: - (!) The court held that ex parte judgment/decree is not sustainable where the respondent was out of city for medical treatment and summons were not personally served on her. - (!) The judiciary should adopt a liberal view in matrimonial disputes, not defeat rights of parties on technicalities. - (!) The impugned order was set aside and the matter remanded to the Family Court for fresh proceedings with directions for timelines to file written statements and evidence. - (!) The appeal proceeding was heard with consent and the matter remanded for further proceedings within specified timeframes. - (!) The appellant’s medical circonstances (kidney transplantation and treatment) were submitted as grounds for non-personal service and absence, influencing the liberal approach. - (!) Process server’s report indicated the appellant was out of city for medical treatment; lack of personal service led to setting aside ex parte order. - (!) The Family Court is directed to allow reasonable time for the appellant to file a reply and to present evidence, with the respondent allotted time for rebuttal, aiming to decide within six months. - (!) The original marriage was solemnized on 29.3.2015; petition filed on 16.4.2019; ex parte proceedings initiated on 25.6.2019; order dated 19.7.2019. - (!) The appeal was allowed, the impugned order set aside, and remand ordered to Family Court No. 1, Jaipur. - (!) Notice to respondent and appearance of counsel for respondent acknowledged during proceedings.
What is the appropriate remedy when an ex parte divorce decree is issued in a matrimonial dispute where the respondent was out of station for medical treatment and the summon was not personally served?
What is the court’s approach to liberal vs. hyper-technical compliance in serving summons and proceeding ex parte in divorce petitions?
What are the permissible procedures and timeframes for remand and re-hearing after setting aside an ex parte judgment in a Hindu Marriage Act case?
ORDER :
Narendra Singh Dhaddha, J.
1. Issue notice to respondent.
1.1. Shri P.S. Sharma, learned counsel accepts notice on behalf of the respondent.
1.2. With the consent of both the parties, this appeal is heard finally.
2. This appeal has been filed by appellant Dr. Tavindar Kaur @ Sachi against the order of the learned Family Court No. 1, Jaipur passed on 19.7.2019 whereby the learned Family Court allowed Divorce Petition No. 3308/2019 (461/2019) filed u/s. 13(1)(ia)(ib) and 7(1)(a) of the Hindu Marriage Act, 1955 (for short "the Act").
3. Brief facts giving rise to this appeal are that the marriage between the parties was solemnized on 29.3.2015 at Raipur (Chhatisgarh) as per Hindu rites and customs. The appellant and respondent, both are doctors by profession. Both the parties are Hindus. The behaviour of the appellant wife was cruel from the very day towards the respondent husband. The appellant wife always denied to the husband from indulging in physical relationship. Never the appellant wife fulfilled the enjoyment of her matrimonial life and treated her husband with cruelty. So, the respondent husband filed divorce petition before the learned Family Court for decree of divorce on the ground of cruelty on 16.4.2019. The learned Family Court issued notice to the appellant wife. Service of notices was deemed sufficient by affixing (Chaspandgi) on 29.4.2019. But she did not present herself. The learned Family Court decided to proceed ex parte proceeding on 25.6.2019. The learned Family Court allowed the petition vide impugned judgment and decree on 19.7.2019 and dissolved the marriage.
4. Learned counsel for the appellant submitted that the impugned judgment and decree dated 19.7.2019 is illegal, perverse and against the material available on record. Learned counsel for the appellant submitted that the appellant wife underwent kidney transplantation at Delhi on 1.9.2018 and her mother was the donor. On 29.04.2019, the appellant was in Delhi for her medical treatment. The process server also stated in its report that the appellant was out of city for her medical treatment, so he affixed the summon. It was also submitted that the learned Family Court had not ordered the process server to serve summon by Chaspandgi. The appellant was out of city temporarily for her medical treatment. So, the court should have approached liberally and made fresh attempt for service.
4.1. Learned counsel for the appellant submitted that the learned Family Court had committed an error for considering the fact that the address of the witness by whom the house was identified and before whom the summons were affixed was not mentioned by the process sever. In absence of the details of the witness, it is impossible to produce the witness in the court to establish the real facts of the case. So, the appeal be allowed and the ex parte judgment and decree dated 19.7.2019 be set aside.
5. Learned counsel for the respondent supported the judgment and decree dated 19.7.2019. He submitted that the learned Family Court has passed the order in its right perspective. He submitted that the learned Family Court had not committed any error in passing the order. So, the appeal be dismissed.
6. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties, perused the impugned orders and the material available on record.
7. The process server in its report clearly mentioned that the appellant was out of city for her medical treatment. The learned Family Court had not ordered the process server to affix the summon of the appellant. In the matrimonial disputes, the court should adopt liberal view in place of hyper technique approach. It is settled principle of law that rights of the parties are never allowed to be defeated only technicalities. The appellant was out of station for her medical treatment, so summon was not personally served upon her. Therefore, the order of the learned Family Court to proceed ex parte against the appe
