Judicial Analysis Court Copy Headnote Facts Arguments Court observation

HIMACHAL PRADESH HIGH COURT
Tarlok Singh Chauhan and Sushil Kukreja, JJ.
Champa – Appellant
versus
Rajender Kumar – Respondent
FAO (FC) No.21 of 2024
Decided on 20.3.2025

Advocates:
Counsel for the Parties:
For the Appellant:Mr. Virender Sharma, Advocate
For the Respondent: None

IMPORTANT POINT
Ex-parte proceedings – Personal service of summons/notice in ordinary way is a rule and substituted service is an exception – Before passing any order for substituted service on the basis of material on record, court must be satisfied that conditions stipulated in Order 5 Rule 20 CPC exist.

Headnote:
Hindu Marriage Act 1955 – Section 13(1)(ia) & (ib) – Civil Procedure Code, 1908 – Order 5 Rule 20 – Divorce – Ex-parte proceedings in Family Court – There was no proper service of summons on applicant by trial Court and that Trial Court had erred in setting applicant ex parte without respondent furnishing correct address of applicant and by taking recourse of publication in newspaper – There is nothing on record to indicate that Family Court has recorded its satisfaction that Newspaper where publication was circulated in the area, there appellant was residing or not – Personal service of summons/notice in ordinary way is a rule and substituted service is an exception – Before passing any order for substituted service on the basis of material on record, court must be satisfied that conditions stipulated in Order 5 Rule 20 CPC exist – Sufficient cause has been shown by applicant for condonation of delay in filing appeal – Delay in filing appeal condoned – Judgment and decree passed by Family Court set aside and Family Court directed to restore petition to its original number. (Paras 6, 7, 8, 13, 18, 19 and 20)
Result: Appeal allowed.

JUDGMENT (ORAL)

Tarlok Singh Chauhan J.—The manner in which the learned Presiding Officer, Family Court has conducted the ex parte proceedings in the petition filed before him leaves much to desire. The respondent herein filed a petition under Section 13(1)(ia) & (ib) of Hindu Marriage Act, 1955 for dissolution of marriage by way of decree of divorce.

2. The aforesaid petition after scrutiny and office report came up for consideration before the learned Principle Judge, Family Court, Bilaspur ( for short, “Family Court”) on 14.03.2022 on which date, the following orders came to be passed:-

“Office report seen. It be registered. Let, notice be issued to the respondent for 27.05.2022.”

3. Notices issued pursuant to the aforesaid order were received back unserved for want of correct address and accordingly, the Family Court on 27.05.2022 passed the following orders:-

“Process issued for the service of respondent received back unserved for want of correct address. Let PF/CA be filed within 07 days, thereafter a fresh notice be issued to respondent returnable for 19.07.2022.”

4. However, notices issued pursuant to the aforesaid orders had not been received back when the case, as directed, came up before the Family Court on 19.07.2022.

5. Shockingly, without there even being an application for substituted service, the Family Court straightway directed the respondent (appellant herein) to be served by way of publication as is evident from the order, which reads as under:-

“At this stage, the learned counsel for the petitioner requested to effect the service of respondent by way of publication. Heard. I am satisfied that respondent could not be served for one or other reason. Hence, request is allowed. Let respondent be served by way of publication be carried out in Newspaper Hindi Daily Amar Ujala. Let publication charges be filed on or before 08-08-2022.”

6. Thereafter, on deposit of the publication charges, publication was carried out in ‘Amar Ujala’ and on account of non-appearance of the appellant, she was proceeded ex parte on 22.10.2022.

7. All these facts have been duly taken note of by the Family Court in its order dated 13.06.2024, which read as under:-

“This application is filed under Section 5 of the Limitation Act, 1963 for condonation of delay of 285 days in filing this appeal challenging the judgment dt. 01.12.2022 passed in Petition No. 23/03 of 2022 by the Principal Judge, Family Court, Bilaspur.

2. The applicant herein was respondent in the said petition. The respondent herein had filed the said petition against the applicant for dissolution of marriage under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955.

3. In the impugned judgment, it is stated that the applicant was duly served, but she had not put in appearance and was proceeded against ex parte. But the copies of the zimini orders filed by the applicant indicate that the notice was issued to the applicant on 14.03.2022 by the Family Court for 27.05.2022, but on 27.05.2022, the process issued for service of the applicant was received back unserved for want of correct address and a direction was issued to the respondent by the Family Court to furnish correct address of the applicant within 7 days. When the matter was again listed on 19.07.2022, on the request of the counsel for the respondent, permission to effect the service of summons on the applicant by way of publication was granted merely recording that the applicant could not be served for one or the other reason.

4. It is not in dispute that the applicant was residing with her father in Village Lahana but in the summons taken by the respondent in the petition, the name of father of the applicant was not mentioned, and therefore, summons could not be served on the applicant. This was mentioned on the summons dt. 17.03.2022.

5. The counsel for the respondent does not deny that he had not mentioned the name of father of the applicant in the petition nor had he furnished the same to th