IMPORTANT POINT
Annulment of marriage by ex-parte decree – Service of summons to a wife in a matrimonial dispute concerning divorce is a serious matter and service cannot be presumed.

JUDGMENT (CAV)

Arun Kumar Jha, J.—The instant appeal has been filed by the appellant/wife (for brevity ‘wife’) against the judgment and decree dated 04.02.2013 and 19.02.2013, respectively passed by learned Principal Judge, Family Court, Munger in Title Suit (Matrimonial) No.97 of 2008 whereby and whereunder the petition dated 09.07.2008 filed by the respondent/husband (for brevity ‘husband’) against wife under Section 12 (1) (a) & (b) read with Section 5 (ii) (b) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) has been allowed ex-parte and, accordingly, the suit was decreed annulling the marriage between the parties by decree of nullity.

2. Briefly stated the case of husband, as it appears from the records, is that the parties are Hindus. They were married on 26.06.1991. Thereafter, both the parties started living together as husband and wife. Husband came to realize that wife was suffering from some mental disorder. Thereafter, she was taken to doctor at Naugachiya from where she was referred to Psychiatrist and, as such, she was taken to Ranchi where she was diagnosed as suffering from ‘schizophrenia’. Thereafter, she got attack of ‘schizophrenia’ on 21.09.1999 and was treated by Dr. S.P. Sinha. Thereafter, as per advice of doctor, she was admitted in Central Institute of Psychiatry, Kanke, Ranchi where she was declared as afflicted with ‘schizophrenia’ and it was also detected that wife was suffering from ‘schizophrenia’ and it was influenced by genetics and she was lunatic at the time of marriage. On account of persistent repugnance on the part of wife to the act of consummation, the marriage was not consummated and it was claimed by husband that she was impotent at the time of marriage. On 30.01.2003, wife left her matrimonial house and went to Dumka to reside with her mother. Despite efforts of husband, wife did not join him and wife filed a complaint Case No.343/2005 under Section 498(A) of the Indian Penal Code, which was converted into Town P.S. Case No.215 of 2005. Wife also filed a maintenance case under Section 125 of the Code of Criminal Procedure in the Family Court, Dumka in the year 2005 in which the learned Principal Judge, Family Court directed husband to pay a sum of Rs.2,000/- per month as ad-interim relief to wife. Thereafter, husband filed a matrimonial case under Section 12 (1) (a) & (b) read with Section 5 (ii) (b) of the Hindu Marriage Act bearing Title Suit (Matrimonial) No.97 of 2008 in which notice was issued to wife, but she did not appear. Due to non-appearance of wife, the Title Suit (Matrimonial) No.97 of 2008 proceeded ex-parte in terms of order dated 10.11.2009. On the basis of pleadings and depositions, the learned Principal Judge, Family Court, Munger declared the marriage of wife as nullity vide impugned judgment dated 04.02.2013 and decree dated 19.02.2023, which is under challenge before this Court.

3. The learned counsel for wife submitted that while passing the impugned judgment and decree dated 04.02.2013 and 19.02.2013, respectively, the learned Family Court completely ignored and discarded the fact that though husband appeared, filed show cause and produced the witnesses before the learned Principal Judge, Family Court, Dumka in Cr. Misc. Case No. 133 of 2005 and a proceeding under Section 125 (4) & (5) of Cr.P.C., but husband never informed the learned Family Court as well as wife or her conducting lawyer at Dumka about the pendency of the Title Suit (Matrimonial) No.97 of 2008. The learned counsel further submitted that the respondent managed the office, resulting thereof, no notice was ever served upon wife. The learned counsel further submitted that the impugned judgment and decree under appeal are based on erroneous consideration as the learned court below completely ignored and discarded the fact that there was no material to substantiate that there was valid service upon wife as is evident from the order sheet of the Title Suit (Matrimonial) No.97 of 200