IMPORTANT POINT
Ex-parte decree of divorce – Substituted service has to be resorted as last resort when defendant cannot be served in ordinary way – Ex-parte judgment passed against appellant set aside.

JUDGMENT (CAV)

Alok Kumar Pandey, J.—The present appeal is directed against the ex parte judgment dated 24.05.2022 and decree dated 06.06.2022 passed in Matrimonial (Divorce) Case No. 264/2017 by the Court of learned Principal Judge, Family Court, Vaishali at Hajipur, whereby and whereunder the learned trial court has allowed the divorce petition filed by the respondent on the ground of desertion, cruelty and adultery.

2. Briefly stated facts of the case is that marriage of appellant and respondent took place on 03.03.2011 and after marriage both started leading conjugal life. It is asserted that appellant/wife started residing separately since June, 2011. It is further alleged that appellant filed Mahnar P.S. Case No. 129 of 2012 under Sections 498A, 406 of the IPC. It is further averred that since the year 2011, no conjugal relation has been stated to be established between the appellant/wife and respondent/husband. It has been claimed by the respondent that earlier Divorce Case No. 221 of 2013 has been withdrawn which was filed on account of non-cooperative attitude of the appellant for leading conjugal life. The appellant filed several cases against the family members of the respondent on the basis of wrong and fabricated facts. The appellant was mentally ill and she has been treated at Ranchi and because of mental illness, she became aggressive and the respondent has levelled the allegation of cruelty, desertion and adultery against the appellant. It is further alleged that appellant did not appear even after service of notice.

3. Learned counsel for the appellant submitted that impugned judgment and decree has been passed in Matrimonial (Divorce) Case No. 264 of 2017 in most casual and perfunctory manner against the weightage of evidence and thus is unsustainable and the same is without having spirit of law. Learned counsel further submitted that respondent has falsely alleged several allegation against the appellant and thereafter learned Family Court issued notice to the appellant but respondent has mentioned wrong address in the envelope as Anant Kumar Singh, resident of village-Behab Deorhi, P.S. Supaul, District-Purnea in place of Bhabua Deorhi, P.S. Rupauli, District-Purnea and accordingly, notice was not served upon the appellant because address of the appellant has wrongly been mentioned by the respondent-husband with malice intention. Learned counsel further submitted that Family Court without giving opportunity of hearing, the appellant proceeded to initiate ex parte proceeding. Learned counsel further submitted that impugned judgment reveals that during course of ex parte hearing, three witnesses have been examined on behalf of the respondent/husband. They are PW-1/respondent-husband himself, PW-2/Abhishek Kumar and PW-3/Anil Kumar Singh (father of the respondent). Learned counsel further submitted that impugned judgment has been passed on the ground of desertion, cruelty and adultery but the said ingredients have not been supported by the deposition of witnesses and without giving proper opportunity for contesting the case, matrimonial dispute should not be adjudicated and no witness has been produced on behalf of the appellant. There is nothing on record to prove the ground of cruelty, desertion and adultery.

4. From perusal of the record, we are satisfied that ex parte judgment is legally unsustainable on the ground of non-service of notice upon the appellant-Richa Kumari and the same needs to be remanded for retrial, we are not inclined to go into the details of merit of the present appeal, as any observation on that count might affect the case of either of the parties when matter is retried by the trial court on merit.

5. On 11.12.2017 order was passed to issue notice by speed post. Order sheet dated 28.03.2018 indicates that notice has already been issued and order sheet dated 28.05.2018 indicates that case was posted for submitting the compliance report on 16.07.2018. Previous order sheet dated 28.05.201