Jharkhand High Court

Kiran Devi Wife Of Rajesh Kumar ... vs Rajesh Kumar Son Of Sri Mahesh Lal on 27 January, 2023

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         F.A. No. 247 of 2017

        Kiran Devi wife of Rajesh Kumar daughter of Baidyanath Karan,
        Resident of Sonari Near Dipanjali Apartment, Jamshedpur, Dist-East
        Singhbhum, Holding No.2154, Road No.3, Adarsh Nagar, P.O. Kagal
        Nagar, P.S.-Sonari Town Jamshedpur, District-Singhbhum East.
                                        .... ... Opposite Party/Appellant.
                                      Versus

      Rajesh Kumar son of Sri Mahesh Lal, R/o Chaibasa, P.S.-Chaibasa,
      West Singhbhum. Present Address C/o Mahesh Lal Bara Gamhria,
      Chitragupta Nagar, P.O.-Gamhria, P.S. Adityapur, District-Seraikella-
      Kharsawan
                                               .......Petitioner/Respondent.
                                       -------
      CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                     HON'BLE MR. JUSTICE SUBHASH CHAND
                                       -------
      For the Appellant          : Mr. Shravan Kumar, Advocate
      For the Respondent         : Mr. Rajesh Kumar Singh, Advocate
                          ----------------------------
20/Dated: 27 January, 2023
             th

Per: Sujit Narayan Prasad, J.

1. This appeal is directed against the judgment dated 28th June, 2017

passed by the learned Principal Judge, Family Court, Seraikella-

Kharsawan, whereby and whereunder the suit filed by the husband,

namely, Rajesh Kumar, against the respondent--Smt. Kiran Devi

(the appellant herein) under Section 13(1)(ib) of the Hindu Marriage

Act for divorce, has been decreed by granting judicial separation

instead of divorce.

2. The brief facts of the case as per the pleading made in the present

appeal which requires to be enumerated, reads hereunder as:

On 3rd June, 2016, the respondent--Rajesh Kumar filed a

matrimonial suit for decree of divorce under Section 13(1) (ib) of [2]

the Hindu Marriage Act before the learned Principal Judge, Family

Court, Seraikella-Kharsawan stating therein that the appellant-Kiran

Devi and respondent--Rajesh Kumar are a legally married couple

and their marriage was solemnized on 26th June, 2009. Out of their

wedlock a son was born and according to the respondent the

appellant tried to keep the husband as Ghar Jamai for which the

respondent expressed his inability. The respondent has alleged that

the appellant created an awkward situation by deserting the

respondent at several occasions and deserted the respondent finally

on 5th October, 2010. Thereafter, the respondent made several

efforts to bring the appellant back but all went in vain. The cause of

action for the suit arose on 26th September, 2009, the date of

solemnization of marriage and again on 5th October, 2010, the date

when the appellant finally left the house of the

husband/respondent.

Thereafter a matrimonial suit being Matrimonial Suit No.23 of

2016 was filed on 3rd June, 2016 and it was admitted on 11th

August, 2016. Notices were served to the wife/appellant through

Nazarat and registered post and also published in daily newspaper

i.e., New Ispat Mail, however, in spite of all the notices, the

respondent did not appear and thereby an ex-parte judgment was

passed on 28th June, 2017 and decree was signed on 7th July, 2017,

which is the subject matter of the instant appeal. The appeal has

been filed solely on the ground that the suit has been decreed ex-

parte.

[3]

3. Mr. Shravan Kumar, learned counsel appearing for the appellant has

submitted that the appellant is having no knowledge about filing of

the suit, since, no notice has ever been served upon her and, as

such, the decree since has been passed without an opportunity to

defend, the decree is fit to be set aside.

It has been submitted by referring to paragraph 3 of the

impugned judgment that the learned family court has come to the

conclusion by taking into consideration the steps having been taken

about sending the notice to the respondent through Nazarat and

registered post and thereafter it was published in daily newspaper,

namely, New Ispat Mail, but even in spite of that the respondent did

not appear, therefore, the suit has been proceeded for ex-parte

hearing vide order dated 4th May, 2017.

It has been submitted by learned counsel that the learned family

court has only considered the steps having been taken through

Nazarat or registered post or publication in the daily newspaper but

the court should have taken endeavor for service of notice by asking

the husband, the plaintiff to the suit, for service of notice to the

appellant personally but having not taken such step, the aforesaid

step deeming the notice to have been validly served, cannot be said

to be proper finding by the learned Family Court by posting the suit

for the ex parte hearing.

4. Mr. Rajesh Kumar Singh, learned counsel appearing for the

respondent, while on the other hand, has submitted that it is [4]

incorrect on the part of the appellant to take the ground that the

notices have not been served.

It has been submitted by him that all the steps as per the law

have been taken for securing the appearance of the respondent--

wife (the appellant herein), as would appear from paragraph 3 of

the impugned judgment, but even then, since, there was no

appearance of the appellant, therefore, the court was having no

option but to proceed ex-parte and accordingly, the court has

proceeded ex-parte and passed the judgment of judicial separation

and hence the same requires no interference.

5. We have heard the learned counsel for the parties and perused the

documents available on record.

6. This Court before proceeding to examine the grounds agitated on

behalf of the parties, deems it fit and proper to refer the order

dated 3rd May, 2018 passed in the proceeding of this case by which

it appears that the steps for mediation has been taken but the

mediation failed, as per the mediation report dated 28th July, 2018,

taken note by this Court in the order dated 2nd August, 2018.

Thereafter, this Court has passed an order on 10th October,

2022 whereby and whereunder the learned counsel for the

respondent was asked to take instruction from the respondent

whether he has solemnized second marriage.

[5]

This Court has also passed an order for keeping in abeyance the

operation and execution of the judgment dated 28th June, 2017

passed in Matrimonial Suit No.23 of 2016.

The respondent has been directed to file an affidavit stating on

oath whether before filing of the first appeal on 29th August, 2017

he has solemnized second marriage, or, after filing of the present

appeal, if at all he has solemnized the second marriage.

7. Mr. Rajesh Kumar Singh, learned counsel appearing for the

respondent has submitted that he is having no instruction and as

such, the affidavit could not be filed. He, in the aforesaid backdrop,

has submitted that the matter may be heard on merit.

8. Accordingly, the matter has been heard on merit.

9. The sole ground taken by the appellant that the decree for judicial

separation has been passed without serving any notice upon the

appellant. Therefore, this Court is only to consider as to whether the

order by which the proceeding has been posted for ex-parte hearing

by the learned Family Court can be said to be justified.

It appears from the observation made at paragraph 3 of the

impugned judgment that reference of the notices sent to the

respondent through Nazarat and registered post and thereafter the

reference of publication of notice in the daily newspaper has been

mentioned. It appears, therefore, that the learned Family Court has

come to conclusion that even in spite of steps taken for service

through Nazarat, registered post and even thereafter by publication [6]

in the daily newspaper, since, the respondent has not appeared,

therefore, the suit was posted for ex-parte hearing. There is no

dispute about the fact that the steps, which are required to be taken

by the family court, appears to have been taken, as would appear

from paragraph 3 of the impugned judgment but the question is

that when the case for divorce has been filed by the husband for

seeking divorce from the wife, then the court ought to have taken

endeavor by asking the plaintiff/husband to serve the notice

personally to the wife, since, both were legally married.

It is, thus, evident that the notices were sent through Nazarat,

registered post and thereafter it was published in daily newspaper

but the notices could not be served. There is no material on the

record to reach to the conclusion that the appellant refused to

receive the notices. There is also nothing on record to show as to

whether the postal authorities made any effort to deliver the

registered letters to any of the appellant's relative at the given

address. It is further evident that the learned Family Court did not

make any attempt to serve the appellant through the process of the

Court. The appellant was no stranger to the respondent, she was

his wife and it could not have been difficult for him to find out the

address where she was staying. Under the circumstances, resort to

substitute service by way of publication in the newspaper cannot be

said to be justified.

10. The similar issue fell for consideration before the Hon'ble Apex

Court in the case of Mrs. Payal Ashok Kumar Jindal vs. Captain [7]

Ashok Kumar Jindal reported in (1992) 3 SCC 116 wherein on

the similar ground i.e., on the ground that the notices have been

shown to be validly served, the ex parte decree has been passed

and the High Court has refused to interfere with the same, the

matter travelled to the Hon'ble Apex Court wherein the Hon'ble

Apex Court, after taking into consideration the fact that the notices

shown to have been issued by the Court through Nazarat and

thereafter through registered post and then the notice has been

published in the daily newspaper, but has not been shown to have

been validly served. The Hon'ble Apex Court, considering the notice

deemed to have been served, has come to conclusion on the basis

of material having not on record to reach a conclusion that the

appellant of the said case refused to receive the notices. Further,

nothing on the record to show as to whether the postal authorities

made any effort to deliver the registered letters to any of the

appellants relations at the given address, as such, came to

conclusion about the finding recorded by the court below wholly

unjustified in holding that the appellant refused to receive the

notices and further that the said notices could have been served by

any of her relations on the given address. The Hon'ble Apex Court

has further been pleased to observe therein that it was the duty of

the Family Court to take attempt to serve the notice to the appellant

through the process of the court. The appellant was no stranger to

the respondent, she was his wife, as such, it could not have been

difficult for him to find out the address where she was staying. The [8]

Hon'ble Apex Court, under such circumstances, has given a finding

to the effect that resort to the substitute service by way of

publication in the newspaper has been considered to be not

justified. Reference in this regard may be made to paragraph 14 of

the aforesaid judgment which reads hereunder as :

"14. After the notices sent by registered post were received back, the Family Court did not make any attempt to serve the appellant through the process of the Court. The appellant was no stranger to the respondent. She was his wife. It could not have been difficult for him to find out the address where she was staying. Under the circumstances, resort to the substitute service by way of publication in the newspaper was not justified."

11. Here in the given facts of the case also similar is the position as

would appear from paragraph 3 of the impugned judgment wherein

the notice has been issued through Nazarat, thereafter, through

registered post and then there was paper publication but nothing

has come on record having not been recorded by the learned Family

Court in the impugned order that the Court has taken any effort to

issue notice through the process of the court, which was to be

issued to the wife of the plaintiff (the respondent herein).

12. The Court since has not taken such endeavor and only gone into the

service of notice either by the Nazarat or by the registered post or

by its publication in the daily newspaper and thereafter posting the

case for ex-parte hearing on non-appearance of the respondent,