Smt Deepa M P vs Sri Shalivahana Tejaswi K L
2021 Latest Caselaw 1691 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF MARCH, 2021

                        PRESENT

     THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

                          AND

    THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

               M.F.A.No.8510/2019 (FC)

BETWEEN:

Smt. Deepa.M.P.
W/o Sri.Shalivahana Tejaswi.K.L.,
Aged about 30 years,
R/at No.432, 5th 'A' Cross,
2nd Block, Kalyan Nagar,
HRBR Layout,
Bengaluru - 560 043.                     ... Appellant

(By Sri. H.V.Harish, Advocate)

AND:

Sri. Shalivahana Tejaswi.K.L.,
S/o Sri. Lakshmipathi Reddy,
Aged about 35 years,
R/at No.432, 5th 'A' cross,
2nd Block, Kalyan Nagar,
HRBR Layout,
Bengaluru - 560 043.                   ... Respondent

(Vide order dated 19.06.2020 and 08.01.2021, service
  of notice to respondent is held sufficient)
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     This appeal is filed under Section 19(1) of Family
Courts Act against the Judgment and decree dated
14.09.2017 passed in M.C. No.5221/2015 on the file of
the III Additional Principal Judge, Family Court,
Bengaluru, allowing the petition filed under Section
13(1)(ia) of Hindu Marriage Act.


    This appeal coming on for Admission this day,
SANJAY GOWDA, J., delivered the following:


                       JUDGMENT

The wife is in appeal challenging the ex parte

judgment and decree dated 14.09.2017 by which, her

marriage conducted on 07.03.2014 with the respondent

has been dissolved.

2. On 30.11.2015, the respondent-husband filed

a petition which was numbered as M.C. No. 5221/2015

seeking dissolution of marriage under Section 13(1)(ia)

of the Hindu Marriage Act, 1955 (hereinafter referred to

as 'the Act', for the sake of brevity). In the said petition,

the address of the appellant/wife was stated as follows:

"Smt.Deepa M.P., W/o.Shalivahana Tejaswi K.L., Aged about 25 years, R/at No.69, 18th Cross, Jayanagar, 5th Block, Bengaluru - 560 041."

3. The Family Court registered the petition and

issued notice to the appellant/wife both through Court

and by Registered Post Acknowledgment Due (RPAD).

The notice sent was not served on the appellant/wife for

want of correct address.

4. A request was made for grant of time to

furnish correct address and accordingly, the matter was

adjourned on two occasions.

5. On 16.07.2016, the Family Court once again

issued notice to the appellant/wife through Court and by

RPAD and also by courier. However, process fee was not

paid and hence, notice was not sent. The matter was

finally adjourned for taking steps to 03.11.2016.

6. On 03.11.2016, a submission was made by

the respondent/husband through his counsel stating that

the appellant/wife had left the address and hence, time

may be granted for furnishing the correct address.

Accordingly, matter was finally adjourned to 01.12.2016.

7. On 01.12.2016, the process fee and RPAD

charges were paid and hence, the Court directed

issuance of notice to the appellant/wife through Court

and by RPAD returnable by 02.02.2017.

8. The office note in the order sheet of

02.02.2017 reads as follows:

"Notice through Court not Served (ªÀÄ£É. £ÀA. ¥ÀvÉÛAiÀiÁUÀzÉ ªÁ¥À¸ï) RPAD Not served as "Addressee Refused."

9. As could be seen from the above note in the

order sheet, though the court notice was not served on

the ground that the residential address could not be

traced, the notice sent by RPAD was stated as to have

been refused.

10. The Family Court notwithstanding this

anomaly, nevertheless, proceeded to accept the

endorsement of the postal authorities that 'the

addressee had refused' and held service of notice on the

appellant-wife was sufficient.

11. It is obvious that the notice sent by RPAD was

also to the very same address to which the process

server of the Court had apparently visited to serve the

notice and had stated that he was unable to trace the

address.

12. In other words, in respect of the address

which the process server could not trace, the postal

authorities stated that the addressee (appellant herein)

had refused service.

13. As stated earlier, the Family Court, thereafter,

despite the anomaly, proceeded to hold the notice to the

appellant herein as sufficient and proceeded to place her

ex parte.

14. The Family Court, thereafter, went on to grant

a decree dissolving the marriage mainly on the ground

that there was no contest.

15. It is the case of the learned counsel for the

appellant/wife that both the husband and wife were

residing together in the same house i.e., the residential

address which had been indicated in the cause title as

against the respondent-husband. He contended that the

address shown as against the appellant/wife was a

fictitious address and the husband had deliberately given

a wrong address in order to secure an ex parte decree.

16. He submitted that the fact that the notices

sent through Court and RPAD at the inception were

returned with an endorsement 'address was insufficient'

was itself proof of fact that a wrong and fictitious

address had been given.

17. Learned counsel also stated that this was a

clear case of fraud being played by the

respondent/husband. In order to substantiate his

assertions, he brought to our notice the fact that that the

petition for divorce which was initiated on 30.11.2015

and was pending till 14.09.2017 and during this period

the marriage was registered before the Sub-Registrar on

30.03.2017. He submitted that the fact that the

marriage was registered during the pendency of the

proceedings would itself clearly prove that the appellant

and respondent were cohabitating together.

18. He also submitted that the respondent had

suppressed the fact that a son had been born to the

appellant and the respondent after the filing of the

petition on 19.7.2016 and a passport for the son was

also applied for and obtained during the pendency of the

divorce proceedings and birthday celebration of their son

was also conducted. He submitted that the photographs

produced also indicated that they were cohabitating

together and it was thus clear that the entire

proceedings initiated for divorce was a farce and were

with a conscious design to obtain an ex parte decree.

19. Notice of this appeal was ordered to the

respondent/husband on 26.11.2019. The notice sent to

the respondent/husband was returned with an

endorsement "insufficient address". The subsequent

notice sent on 22.01.2020 to the respondent/husband

was returned with postal shara "door locked". This Court

had also permitted the appellant to take out hand

summons on the respondent. A memo was filed by the

appellant that the respondent had refused the hand

summons. Taking note of the said endorsements, a

paper publication was ordered. Accordingly, paper

publication was taken in 'Samyukta Karnataka' and

despite publication, there was no representation on

behalf of the respondent/husband. This Court accordingly

held that the service of notice on the respondent was

sufficient. However, this Court, despite holding service of

notice as sufficient also permitted the appellant to serve

a copy of the memorandum of appeal on the counsel

who had represented the respondent/husband before the

Family Court.

20. Learned counsel for the appellant by way of a

memo stated that he had sent the copies of the appeal

memorandum through Whatsapp and also through email

to the counsel who had represented the

respondent/husband in the Family Court. He also

produced the copy of the screenshot of the Whatsapp

message and also the copy of email apart from the

postal cover which had been returned unserved.

21. In fact, in the memo, the appellant's counsel

had stated that the counsel who represented the

respondent before the Family Court had refused to

receive the notice of the appeal. It is thus clear that

every possible attempt was made to ensure service of

notice of this appeal on the respondent/husband, but the

respondent/husband has successfully evaded the service

of notice.

22. Left with no other option, we have proceeded

to examine this appeal on merits.

23. As stated above, the respondent/husband

before the Family Court furnished the address of his wife

which indicated that she was residing at "No.69, 18th

Cross, Jayanagar 5th Block, Bengaluru - 560 041".

Notices sent to this address were returned with an

endorsement that there was no such person. Registry of

the Family Court also noticed that the address provided

was insufficient.

24. Thereafter, correct address was stated to

have been given and the notices sent through the Court

were returned unserved with an endorsement that the

house number provided could not be traced. The notices

which were obviously sent to the same address by RPAD

were however returned with an endorsement that the

addressee refused. This indicates that the address

provided by the respondent/husband was obviously not

reliable. If the process server of the Court could not

trace the house and yet at the same time the postal

authorities were able to trace the very same house and

secure an endorsement that the addressee had refused,

this paradoxical situation obviously creates a serious

doubt as to the actual service of notice on the appellant.

25. The Family Court disregarding this

contradiction regarding service of notice, straightaway

proceeded to hold the service of notice on the

appellant/wife as sufficient. In our view, this approach of

the Family Court cannot be accepted. The Family Court

was duty bound to examine as to why the notices sent

through Court were returned with an endorsement that

the house number could not be traced, while at the same

time, the notice sent through RPAD was returned with

postal shara "addressee refused". In our view, the

Family Court, by ignoring this contradiction, has

committed a serious irregularity and this has resulted in

a serious miscarriage of justice.

26. The Family Court has dissolved the marriage

essentially because the proceedings were not contested.

The conduct of the respondent/husband in this regard,

firstly, in not responding to the notice of this Court and

in not appearing before this Court lends credence to the

suspicion that the entire proceedings before the Family

Court was stage managed to secure an ex parte decree.

27. The following materials produced by the

learned counsel for the appellant/wife:

"a. in respect of the marriage between the

appellant and the respondent being registered

during the pendency of the divorce proceedings,

b. that a son was born during the pendency of

the petition and a passport for the son had also

been applied for and obtained during the

pendency of the divorce proceedings and

c. the birthday of their son being celebrated

during the pendency of the divorce proceedings"

give room for serious doubt as to the genuineness and

validity of the entire proceedings before the Family

Court.

28. Another factor to be noticed in this appeal is

that during the pendency of this appeal, an application

was filed for impleading by one Smt. M. Hema, who

claimed that she had married the respondent herein on

29.05.2019 in a Temple and had thereafter also had a

wedding reception on 20.10.2019. She has stated that

her marriage with the respondent herein was also

registered on 05.05.2018 and the respondent had in fact

duped her by securing the loan of Rupees Four Crores

Seventy Six Lakhs by mortgaging her properties. Though

the said application was dismissed on the ground that

she was neither a necessary nor a proper party to this

proceeding, the averments made in the application,

prima facie, give room to a suspicion that the conduct of

the respondent-husband is unethical and improper.

29. The assertions made by Smt. M.Hema gives

us an impression that the entire proceedings before the

Family Court had been initiated by the

respondent/husband with a design and motive of

securing an ex parte decree so as to facilitate the second

marriage of the respondent.

30. In view of the above, we are of the view that

the conduct of the respondent/husband is not above

board and is with ulterior and oblique motives.

31. Be that as it may. Since we have held that

the proceedings conducted in the absence of the

appellant/wife is illegal as the notices of the petition for

divorce were not served on her, the impugned order

cannot be sustained.

32. In view of the above discussion, the

impugned judgment and decree dated 14.09.2017

passed in M.C.No.5221/2015 is set aside. The matter is

remanded to the concerned Principal Judge, Family

Court, Bengaluru for reconsideration of the petition filed

by the respondent/husband.

33. Since the appellant is represented through his

counsel, the appellant to appear before the concerned

Family Court on 22.03.2021 without expecting any

separate notice from the said Court.

34. The statement of objection to

M.C.No.5221/2015 shall be filed by the appellant herein

on 22.03.2021 or any other date to be stipulated by the

Family Court.

35. Since the respondent/husband is not

represented in the appeal, the Family Court to issue

notice to the respondent herein and to dispose of

M.C.No.5221/2015 expeditiously, in accordance with law,

after providing an opportunity to the appellant herein.

The appeal is allowed and disposed of in the

aforesaid terms.

Parties shall bear their respective cost.

Sd/-

JUDGE

Sd/-

JUDGE

PKS