Smt P V Prema vs Sri T K Manjunath
2022 Latest Caselaw 9367 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF JUNE, 2022

                      PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                        AND

         THE HON'BLE MS.JUSTICE J.M.KHAZI

             M.F.A.NO.7043 OF 2013 (FC)

BETWEEN:

SMT P V PREMA
W/O SRI.T.K.MANJUNATH,
AGED ABOUT 32 YEARS,
RESIDENT OF PILLUGUMPE VILLAGE
HOSKOTE TALUK - 562 114
BENGALURU RURAL DISTRICT.
                                          ... APPELLANT
(BY SRI AMARESH A ANGADI, ADVOCATE)

AND

SRI T K MANJUNATH
S/O K.D.KRISHNACHARI,
AGED ABOUT 39 YEARS,
RESIDING AT NO.207/1,
7TH CROSS, 1ST FLOOR,
CUBBONPET MAIN ROAD,
BENGALURU - 560 002.
                                          ...RESPONDENT

(SRI. G. PAPI REDDY, ADVOCATE - ABSENT)
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      THIS MFA IS FILED UNDER SECTION 19 (1) OF
FAMILY COURT ACT, 1984 PRAYING TO a) SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE PASSED BY THE
HON'BLE COURT OF ADDITIONAL PRINCIPAL JUDGE,
FAMILY      COURT    -  IV,  BENGALURU      CITY   IN
M.C.NO.3158/2011 DATED 25.02.2013 SO FOR RELATED
TO IN ALLOWING THE PETITION UNDER SECTION 13(1) (ia)
OF HINDU MARRIGE ACT AND TO CONFIRM THE SAME IN
DISMISSING THE PETITION UNDER SECTION 30(1) (i) AND
30 (1) (ib) OF HINDU MARRIAGE ACT; b) TO REMAND THE
MATTER IN M.C.NO.3158/2011 FOR FRESH DISPOSAL IN
PROVIDING OPPORTUNITY TO THE APPELLANT HEREIN IN
SO FOR RELATED TO ALLOWING THE PETITION BY THE
HON'BLE ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT-
IV, BENGALURU CITY UNDER SECTION 13(1) (ia) OF HINDU
MARRIAGE ACT, IN THE INTEREST OF JUSTICE AND
EQUITY.

     THIS MFA HAVING BEEN HEARD AND RESERVED ON
09.06.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE
FOLLOWING:
                     JUDGMENT

Being aggrieved by the grant of Ex-parte decree of

divorce in a petition filed under Section 13(1)(i) and

13(1)(i-b) of Hindu Marriage Act, 1955 (hereinafter

referred to as 'the Act' for short) at the instance of her

husband, appellant has filed this appeal under Section

19(1) of the Family Courts Act, 1984, with a prayer to set

aside the impugned judgment and decree and remand

the case for fresh disposal after providing opportunity of

hearing to her.

2. For the sake of convenience the parties are

referred to by their rank before the trial Court.

3. Brief facts giving rise to the filing of the appeal

are that the marriage of petitioner and respondent was

solemnized on 18.11.2004 at Devaki Kalyana Mantapa,

Hoskote. After the marriage they led their marital life at

Bengaluru. Even prior to the marriage, petitioner and

respondent were related. Through the wedlock, a

daughter was born on 29.08.2005. Respondent is a

beautician running a beauty parlour at Hoskote. She is

also a tailor and tutor to primary and high school

students and earning more than Rs.30,000/-p.m.

3.1 It is the further case of the petitioner that on

03.03.2009, the respondent left the company of the

petitioner abruptly along with her belongings and since

then she is residing with her parents. In spite of advise

by elders and panchayatdars, respondent has failed to

join the petitioner in the matrimonial home. After the

birth of the child, respondent started behaving strangely.

She was saying that she is not interested in marrying the

petitioner. On the other hand, she was interested in one

Nagendra Kumar. In fact respondent had got issued a

legal notice dated 16.09.2009 calling upon the petitioner

to take her and her child to the matrimonial home, for

which petitioner has sent reply dated 29.09.2010 stating

that she has made unnecessary and unfounded

accusation and directed her to return to the matrimonial

home. Instead of returning to the matrimonial home,

respondent has filed a case in Crl.Misc.85/2009 against

the petitioner seeking maintenance on false accusations.

Petitioner was always ready and willing to take back the

respondent. However, she never showed any interest to

return to the matrimonial home.

3.2 Respondent is averred to be involved in illicit

relationship with Nagendra Kumar, who is a worker in

the residence of her father since last 5-6 years. The said

Nagendra Kumar was giving repeated threatening calls to

the petitioner and his family members. At the request of

father of respondent, on 13.04.2010 at 10.00 a.m,

petitioner went to his residence along with elders.

However, respondent's father was not available and other

members of the family abused the petitioner and other

elders accompanying him. It is averred that the said

Nagendra Kumar threatened them. Therefore, being

disappointed they returned. In this regard, petitioner has

lodged a complaint viz., Cr.No.86/2010.

3.3 It is the further case of the petitioner that he

filed M.C.No.1560/2010 seeking decree for restitution of

conjugal rights on 29.05.2010. However, the said petition

came to be dismissed on 30.07.2011. Therefore, this

petition is filed seeking divorce.

4. The Family Court has sent Court notices to the

respondent thrice in addition to simultaneously issuing

notice through RPAD. All the six notices have returned

unserved with endorsement that at the time of service,

respondent was not available at the address. On

14.09.2012, petitioner filed I.A.No.2 under Order V Rule

20 CPC, supported by his Affidavit contending that

respondent was intentionally evading service of notice.

Taking into consideration the fact that notices sent to the

respondent six times i.e., three times through Court and

three times through RPAD have returned unserved with

endorsement that the respondent was not available at the

address at the time of service of notice but at the same

time she was prosecuting Misc. Petition against the

petitioner while living in the same address, the Family

Court has permitted petitioner to issue notice through

paper publication.

5. Accordingly, on 17.09.2012, petitioner got

published the notice in Samuktha Karnataka Daily

newspaper, which is widely circulated throughout the

State of Karnataka, including the place where the

respondent is staying. The date of appearance given in

the paper publication was 19.10.2012. On that day i.e.,

19.10.2012, the Family Court has called out the case of

the respondent, but she remained absent. Once again, a

month's time was granted by the Family Court for

appearance of the respondent and the case was posted to

19.11.2012.

6. On 19.11.2012, when the respondent failed to

enter appearance, the Family Court has placed her

Ex-parte and has proceeded with the matter.

7. In support of his case, petitioner has examined

himself as PW-1 and relied upon Ex.P1 to 12.

8. Vide the impugned judgment and decree,

though the Family Court dismissed the petition filed by

the petitioner under Section and 13(1)(i) and 13(1)(i-b), it

has allowed the petition filed under Section 13(1)(i-a) of

the Act and dissolved the marriage between the petitioner

and respondent.

9. During the course of arguments, the learned

counsel representing the appellant submitted that on

16.09.2009, respondent sent a legal notice to the

petitioner calling upon him to take back the respondent

and their daughter, but he has failed to comply with the

said notice and therefore, she has filed maintenance

petition in C.Misc.85/2009. To avoid his responsibility of

paying the maintenance, petitioner has filed

M.C.No.1560/2009, seeking restitution of conjugal rights

and has resorted to making false allegations. In the said

petition also, respondent was not served. Even though he

was appearing in C.Misc.85/2009, intentionally he has

not taken any hand summons to the respondent or to her

counsel and has managed to obtain an Ex-parte decree of

divorce.

9.1 The learned counsel for appellant would

submit that the impugned judgment and decree is

contrary to the principles of natural justice. She has not

been provided with reasonable opportunity to defend

herself. The reasons assigned by the Family Court for

granting decree of divorce under Section 13(1)(i-a) are not

correct. The Family Court has not appreciated the fact

that the earlier petition filed by the petitioner in

M.C.No.1560/2010 was dismissed by the Family Court

on the ground that he has made serious allegations

against the respondent. Inspite of there being no evidence

to prove that the respondent has treated the petitioner

with cruelty, the Family Court has erred in granting

decree of divorce under Section 13(1)(i-a) of the Act.

9.2 In support of his arguments, the learned

counsel representing the appellant has relied upon the

following decisions:

(i) Smruthi Pahariya Vs. Sanjay Pahariaya1 (Pahariaya's case)

(ii) M/s Nirja Realators Pvt.Ltd Vs. Janglu, dead by LRs (Nirja Realators' case)2

10. The undisputed facts are that the marriage of

petitioner and respondent was solemnized on 18.11.2004

and they are blessed with a daughter born on

29.08.2005. According to the petitioner on 03.03.2009,

respondent without any justifiable cause has removed

herself from the company of the petitioner and since then

she is living separately along with their daughter. He has

alleged that respondent is living in adultery with one

Nagendra Kumar and that is the reason for her leaving

the company of the petitioner. Earlier he filed a petition

AIR 2009 SC 2840

AIR 2018 SC 753

seeking restitution of conjugal rights in

M.C.No.1560/2010. In that petition also, respondent

remained Ex-parte. However, the said petition came to be

dismissed by the Family Court on the ground that he had

made allegations against the respondent and in the light

of the said allegations, restitution cannot be granted.

11. Once again after issuing legal notice, petitioner

has filed M.C.No.3158/2011. In the said petition also,

respondent has remained Ex-parte and accordingly, the

Family Court has proceeded against the respondent Ex-

parte and granted decree of divorce. Respondent has

contended that when M.C.No.3158/2011 was filed,

C.Misc.No.85/2009 filed by her was pending and

petitioner was appearing through counsel in the said

petition and he ought to have got the notice of the said

petition served on her through her counsel appearing in

C.Misc.85/2009. It is further contended that instead the

petitioner intentionally chose not to exercise the said

option in order to plead his case Ex-parte before the

Family Court.

12. Now the question for our consideration in this

appeal is whether the notices in M.C.No.3158/2011 and

for that matter in M.C.No.1560/2010 which was an

earlier petition seeking restitution of conjugal rights,

wherein also respondent remained Ex-parte, were sent to

the address wherein respondent is living. If so whether

respondent has intentionally evaded the service of the

said notices.

13. At the outset, it is relevant to note that

respondent is not disputing that she is living at the

address reflected in the cause title of the petition in

M.C.No.3158/2011 as well as in the earlier petition also

i.e., M.C.No.1560/2010. It is also relevant to note that

this is the address to which petitioner has sent reply

notice at Ex.P2 dated 29.09.2009. This reply notice came

to be issued by him to the legal notice dated 16.09.2009

at Ex.P1 sent on behalf of the respondent, wherein also

her address is reflected as resident of Pilla Gumpe

Village, Hoskote Taluk, Bengaluru Rural District. It is

pertinent to note that Ex.P5 is the petition filed by the

respondent in C.Misc.85/2009 against the petitioner

seeking maintenance at the rate of Rs.10,000/- to herself

and her daughter. In this document also her address is

the same as given in the cause title of the petition as well

as in the appeal memo. Ex.P13 is the judgment in

M.C.No.1560/2010 filed by the petitioner against

respondent. In this document also the address of the

respondent is the same as given in M.C.No.3158/2011. It

is also relevant to note that respondent never disputed

that she is residing in the address shown in the cause

title.

14. Petitioner filed M.C.No.3158/2011 on

14.09.2011. It has come before the Court on 17.10.2011.

On that day, the Family Court had ordered for issue of

notice to respondent through Court as well as by RPAD

returnable by 07.12.2011. On 21.01.2012, it is noted in

the order sheet that the RPAD as well as Court notice

have returned unserved with endorsement that the

respondent was not available at the time when service

was sought to be made. Similarly, the postal envelope is

also returned with endorsement that on 7 days

continuously the postman has gone to the address, but

the addressee was not available.

15. Once again on 24.05.2012, the Family Court

has ordered for issue of notice to respondent through

Court as well as by RPAD returnable by 13.07.2012. On

13.07.2012, it is noted by the Family Court that the

notices sent to respondent have returned with the same

reason as at the first instance. However, once again the

Family Court has ordered for issue of notice to

respondent through Court as well as by RPAD returnable

by 04.09.2012. Even for the third time, the notices sent

to the appellant have been returned as unserved with the

same endorsement i.e., the addressee/respondent is not

available, when the process server as well the postman

went to effect the service. It is pertinent to note that

none of these notices are returned with endorsement that

respondent is not living in the said address. Of course it

is not the case of the respondent that she is not living in

the said address.

16. Under Section 27 of the General Clauses Act,

where any Central Act or Regulation made after the

commencement of this Act, authorizes or requires any

document to be served by post, whether the expression

serve or either of the expressions give or send or any

other expression is used, then unless a different

intention appears, the service shall be deemed to be

effected properly addressing prepaying and posting by

registered post, a letter containing the document and

unless the contrary is proved to have been effected at the

time at which the letter would be delivered in the

ordinary course of post. When the respondent is living in

the address shown in the cause title and when thrice, the

process server has gone to effect service of the notice sent

through Court as well as thrice the postman has gone to

effect service of the notice sent through RPAD and in fact

on each occasion postman has gone to the address and

several times (7 times) each time, the respondent has

failed to be present at the address and receive the notice,

it goes to show that she has intentionally evaded the

service of notice.

17. It is also relevant to note that on earlier

occasion also, when notice was sent in

M.C.No.1560/2010, respondent has failed to receive the

same and as such in the said petition also, she was

placed ex-parte. Fortunately for the respondent the said

petition came to be dismissed and therefore she has not

chosen to challenge the same. It is also relevant to note

that throughout this appeal, the respondent has not

stated any reasons as to why she was not available in the

address when the process server as well as postman have

gone to effect the service of notice on her.

18. After realizing that the respondent is

intentionally evading the service of notice, petitioner has

resorted to the provisions of Order V Rule 20 (1A) and

requested the Court for issue of notice through paper

publication. After examining the conduct of the

respondent in not receiving the notice sent thrice both

through Court as well as through RPAD for three times,

the Family Court has rightly allowed the application and

ordered issue of notice through paper publication i.e, in

Samyuktha Karnataka, a daily newspaper published

throughout the State of Karnataka including villages.

Accordingly, the notice has been published in the said

newspaper. Inspite of due service of notice and providing

30 days for her appearance and thereafter one more

month time given for her appearance, respondent has not

chosen to appear before the Court and put forth her

defence. In the aforesaid circumstances, we are of the

considered opinion that the Family Court is justified in

proceeding against the appellant ex-parte.

19. So far as Smrithi Pahariya's case referred to

supra relied upon by the learned counsel for respondent

is concerned, suffice it to say that it was a joint petition

filed by the husband and wife for divorce by mutual

consent. In the said case, the husband failed to appear

on 2-3 hearing dates. Therefore, the Court issued notice

to him and even though the Court was not satisfied that

the husband was evading the service, it directed

substituted service of summons. Moreover in the said

case, the trial Court has preponed the case and

proceeded to pass an ex-parte decree. Therefore, in those

circumstances the Hon'ble Supreme Court held that

there was no due service of notice and the trial Court was

not justified in placing the husband ex-parte. However, in

the present case, after being satisfied that the wife is

intentionally evading service of notice which was sent

thrice through the Court as well as through RPAD, the

Family Court has resorted to the mode of substituted

service. Therefore, this decision is not applicable to the

case on hand.

20. Relying upon Nirja Realators's case referred

to supra, the learned counsel for respondent submitted

that as per Order V Rule 17 CPC, the process server who

took the notice for service, on finding the respondent

absent should have affixed the notice on the conspicuous

part of the house and in breach of the same, there is no

due service of notice. It is true that under Order V Rule

17 CPC, a provision is made for affixture of the notice on

the conspicuous part of the premises to which address

the notice has been sent, the plain reading of this

provision makes it clear that this method could be

resorted to only when the serving officer comes to the

conclusion that the defendant or his agent or any other

person who is authorized to receive the notice refuses to

sign the acknowledgement or where the Serving Officer

after using all due and reasonable deligence cannot find

the defendant who is absent from his residence at the time

when the service is sought to be effected on him at his

residence and there is no likelihood of his being found at

the residence within a reasonable time.

21. However, in the present case these conditions

are not fulfilled. Since the Serving Officer did not find the

addressee i.e, respondent in the given address when he

went to serve the same thrice, he has returned the notice.

He did not entertain a doubt that there is no likelihood of

respondent being found in the residence within a

reasonable time. Therefore, he has returned the notice.

As a precautionary measure, the Family Court has also

sent the notice by RPAD which was also returned with

endorsement that addressee was not available on all the

seven dates on which the postman has gone to the

address. These circumstances justify the Family Court in

ordering for substituted service of notice through paper

publication. In the facts and circumstances of the case,

the above decision is not applicable to the case on hand.

22. In view of the preceding analysis, we hold that

after providing sufficient opportunity to the respondent to

hear and put forth her defence, when she has failed to

avail the said opportunities and after realizing that

respondent is not interested in defending the petition and

she is intentionally evading the service, the Family Court

has rightly placed her ex-parte and proceeded with the

matter. In fact, after appreciating the entire oral and

documentary evidence placed on record, the Family

Court has rejected the petition filed under Section 13(1)

and 13(1) (iii), but allowed the petition under Section

13(1)(i-a). Consequently, the respondent has failed to

demonstrate that she had any justifiable reasons in not

appearing before the Family Court inspite of coming to

know about the filing of the petition.

23. It is also relevant to note that even though this

appeal is filed in the year 2013, respondent has not

chosen to seek early hearing of the appeal to show her

bonafides that she is really interested in joining the

petitioner and leading a matrimonial life with him. There

was delay of 140 days in filing the appeal. No stay was

granted. On 30.07.2014, this Court has observed that on

the last four successive dates of hearing, respondent in

the appeal i.e., the husband is present before the Court

and submitted that he is ready and willing to take his

wife and child along with him. However, for the last three

dates the appellant i.e., the wife is not present. On

30.07.2014, the appellant i.e., wife was present before

the Court and submitted that she is not willing to go with

the respondent. Ultimately, on 02.07.2021, this Court

has noted the submission of learned counsel for the

husband that the husband has contracted second

marriage.

24. The conduct of the appellant-wife before this

Court goes to show that she is not at all interested in

living with the petitioner. This also supports the findings

of the Family Court that she has intentionally evaded the

service of notice. Taking into consideration these aspects,

we are of the considered opinion that no justifiable

grounds are made out by the respondent-wife to recall

the impugned judgment and decree and remand the

same for fresh disposal. At this point of time no purpose

would serve by providing the appellant with another

opportunity as it appears that she is not interested in

living with the petitioner-husband.

In the result, the appeal fails and we proceed to

pass the following:

ORDER

(i) Appeal filed by respondent - wife is hereby

dismissed.

(ii) The registry is directed to transmit the trial

Court record along with copy of this judgment.

Sd/-

JUDGE

Sd/-

JUDGE

RR