Bombay High Court
Jiya W/O Kuldeep Shewte vs Mr. Kuldeep S/O Jagdish Shewte on 13 October, 2016
Bench: V.A. Naik
1310FCA23.16-Judgment 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 23 OF 2016
APPELLANT :- Jiya W/o Kuldeep Shewte, Aged about 27
years, Occupation : Household, R/o C/o
Sunil Juneja, Plot No.347, Old Bagadganj,
Datta Nagar, Near Shashtri Nagar Primary
School, Nagpur.
...VERSUS...
RESPONDENT :- Mr. Kuldeep s/o Jagdish Shewte, Aged about
ig 32 years, Occupation : Service, R/o Near
Hanuman Mandir, IBM Road, Gittikhadan,
Katol Road, Nagpur.
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Mr.A.K.Madane, counsel for the appellant.
Mr.P.K.Sathianathan, counsel for the respondent.
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CORAM : SMT. VASANTI A NAIK &
KUM. INDIRA JAIN, JJ.
DATED : 13.10.2016
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
The family Court appeal is admitted and heard finally at
the stage of admission with the consent of the learned counsel for the
parties, as it is a matrimonial matter and the record and proceedings are
received from the Family Court.
2. By this family court appeal, the appellant-wife challenges
the judgment of the Family Court, Nagpur dated 09/01/2015, allowing
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the petition filed by the respondent-husband for a decree of divorce
and dissolving the marriage solemnized between the parties on
27/06/2012.
3. The appellant and the respondent were married at Nagpur
on 27/06/2012. According to the parties, the marriage was a love
marriage and the parties were meeting each other for almost four years
before the solemnization of the marriage. The husband filed a petition
against the wife for a decree of divorce on the ground of cruelty. The
appellant-wife had also filed a petition against the respondent-husband
for a declaration that the marriage solemnized between the parties on
27/06/2012 was null and void, as the consent of the wife was secured
by the husband by practicing fraud. In this family court appeal we are
not concerned with the petition filed by the wife for a declaration that
the marriage was a nullity, as we are concerned with the judgment
passed by the Family Court in the petition filed by the husband for a
decree of divorce on the ground of cruelty. After the husband filed the
petition for a decree of divorce, a notice was issued to the wife on the
address that was mentioned in the petition filed by her under Section
12 of the Hindu Marriage Act. Though the Bailiff reported that the
address was insufficient and the service could not be effected on the
wife, in view of the insufficiency of the address, the Family Court
held that there was a deemed service of the notice on the wife and it
proceeded to decide the petition filed by the husband, ex parte. On the
basis of the evidence tendered by the husband on affidavit and the
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judgment rendered by the Family Court in the petition filed by the wife
for a declaration under Section 12 of the Act, the Family Court allowed
the petition filed by the husband by the judgment dated 09/01/2015
after holding that the wife had treated the husband with cruelty.
4. Shri Madane, the learned counsel for the appellant-wife,
submitted that the Family Court was not justified in passing a decree of
divorce in favour of the husband after holding that there was a deemed
service of the notice of the proceedings on the wife. It is stated that the
wife was not served with a notice of the proceedings filed by the
husband and though the Bailiff report mentioned that the address was
insufficient and the wife could not be served on the said address, the
Family Court erroneously held that there was a deemed service of the
notice of the proceedings on the wife. It is stated that the aforesaid
finding of the Family Court is patently illegal and is liable to be set
aside.
5. Shri Sathianathan, the learned counsel for the respondent-
husband, supported the judgment and order of the Family Court. It is
submitted that since the service was sought to be effected on the
address stated by the wife in the petition filed by her, the Family Court
has rightly observed that there was a deemed service of the notice of the
proceedings on the wife. It is, however, fairly stated that if this Court is
inclined to remand the matter to the Family Court after holding that the
service was not effected on the appellant-wife, this Court may direct the
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Family Court to decide the petition filed by the husband as early as
possible.
6. On hearing the learned counsel for the parties and on a
perusal of the record and proceedings, it appears that the following
points arise for determination in this family court appeal.
(I) Whether the Family Court could have proceeded to decide
the petition filed by the husband, ex parte by upholding
that there was a deemed service of the notice of the
proceedings on the appellant-wife?
(II) What order?
7. For answering the aforesaid points for determination, it is
not necessary to consider the pleadings of the parties or the evidence
tendered by them. It is only necessary to consider whether the service
of the notice of the proceedings was effected on the appellant-wife. For
examining the said aspect, it would be necessary to consider the record
and proceedings. It is apparent from the record and proceedings that
the notice was never served on the appellant-wife. In fact, the Bailiff
report shows that the wife could not be served in view of insufficient
address. If indeed the wife was not served with the notice of the
proceedings, the Family Court could not have held that there was a
deemed service of the notice of the proceedings on the wife only
because the husband had sought to serve the wife on the same address
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that was mentioned in the proceedings filed by her for a declaration
under Section 12 of the Act. The approach of the Family Court in
deciding the matter was not just and reasonable. The Family Court
could not have, by any stretch of imagination, held in the circumstances
of the case that there was a deemed service of the notice of the
proceedings on the wife merely because the husband had sought to
serve the wife on the address that was mentioned in the petition filed by
her for a declaration under section 12 of the Act. The Family Court
committed a serious error in holding that the service was effected on
the wife while proceeding to decide the petition, ex parte.
8. Hence, for the reasons aforesaid, the family court appeal is
partly allowed. The judgment of the Family Court, Nagpur, dated
09/01/2015 is hereby set aside. The Family Court is directed to decide
the petition filed by the husband afresh on merits, as early as possible
and within ten months. The parties undertake to appear before the
Family Court on 25/10/2016 so that the service of notice to the parties
could be dispensed with. The record and proceedings may be remitted
to the Family Court, Nagpur at the earliest. Order accordingly. No
costs.
JUDGE JUDGE
KHUNTE
