Smt. Suroopa vs Sri. Siddalingaswamy
2023 Latest Caselaw 4598 Kant

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                                              NC: 2023:KHC:24985-DB
                                                   MFA No. 2062 of 2018




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 18TH DAY OF JULY, 2023

                                     PRESENT
                      THE HON'BLE MR JUSTICE ALOK ARADHE
                                        AND
                THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
              MISCELLANEOUS FIRST APPEAL NO. 2062 OF 2018 (FC)
              BETWEEN:

              SMT. SUROOPA,
              D/O SRI.MAHADEVA J,
              AGED ABOUT 28 YEARS,
              EARLIER AT R/AT #46/5,
              2ND CROSS, 1ST MAIN,
              K.H.ROAD, SARASWATHIPURAM,
              MYSURU-570 009.

              PRESENTLY AT:
              HOUSE NO.219, KUMBARA STREET,
              YELANDUR TOWN,
              CHAMARAJANAGARA-571 441.
Digitally                                                  ...APPELLANT
signed by     (BY SRI. ABHILESH J, ADVOCATE)
PRAMILA G V
Location:     AND:
HIGH COURT
OF
KARNATAKA     SRI. SIDDALINGASWAMY,
              S/O LATE PARASHIVA,
              AGED ABOUT 34 YEARS,
              R/AT #HIG-2, 24, KHB COLONY,
              GROUP-1, HOOTAGALLY,
              MYSURU-570 023.
                                                       ...RESPONDENT
              (BY SRI LOURDU MAIYAPPA, ADVOCATE - ABSENT)
                   THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
              COURT ACT, AGAINST THE JUDGEMENT AND DECREE DATED
              05.09.2017 PASSED IN M.C.NO. 637/2016 ON THE FILE OF THE
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                                     NC: 2023:KHC:24985-DB
                                           MFA No. 2062 of 2018




PRINCIPAL JUDGE, FAMILY COURT, MYSURU, ALLOWING THE
PETITION FILED UNDER SECTION 13(1)(i-a) OF THE HINDU
MARRIAGE ACT,FOR DISSOLLUTION OF MARRIAGE.


    THIS APPEAL COMING ON FOR HEARING THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal under Section 19(1) of the Family Courts Act,

1984, has been filed by the wife against the exparte judgment

and decree dated 05.09.2017 passed in M.C.637/2016 by the

Family Court, Mysuru.

2. Facts giving rise to filing of this appeal in nutshell are

as under:

- That the marriage between the parties was solemnised

on 26.01.2015. The respondent/husband filed a petition under

Section 13 of the Hindu Marriage Act, 1955 seeking dissolution

of marriage on the ground of cruelty and desertion. The Family

Court by an order dated 21.11.2016 directed issuance of notice

to the appellant/wife. The appellant/wife at the time of filing of

the petition was residing at the following address:

"House No.219, Kumbara Street, Yelandur Town,

NC: 2023:KHC:24985-DB MFA No. 2062 of 2018

Chamarajanagara - 571441."

However, in the petition the address was described as follows:

# 46/5, 2nd Cross, 1st Main, K H Road, Saraswathipuram, Mysuru.

3. Therefore, the notice issued to the appellant/wife was

received back with endorsements dated 06.01.2017 and

07.02.2017 with the remark that she was not present and had

left without instructions, respectively. Thereupon, the

respondent/husband filed an application under Order V Rule 20

of the Code of Civil Procedure on 28.02.2017. The Family

Court by an order passed on even date allowed the aforesaid

application and directed the publication of notice in "Prajanudi"

- daily newspaper. The Family Court thereafter by an order

dated 17.06.2017 placed the appellant/wife exparte and vide

impugned judgment and decree dated 5.9.2017 allowed the

petition filed by the respondent/husband seeking dissolution of

marriage. Hence, this appeal.

4. Learned counsel for the appellant submitted that

deliberately the address of the appellant/wife was described

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inaccurately in the cause title and she was shown to be resident

of Mysuru whereas she was residing in Yelandur Town,

Chamarajanagar District. It is further submitted that the

Family Court in cryptic and chameleon manner, without

assigning any reasons has allowed the application under Order

V Rule 20 of the Code of Civil Procedure. Therefore, the

impugned judgment and decree deserves to be allowed.

5. None has appeared on behalf of the respondent.

6. We have considered the submissions made by the

learned counsel for the appellant and have perused the records.

7. From the perusal of the records it is evident that

appellant/wife was residing at Yelandur Town, Chamarajanagar

District whereas in the cause title, she was shown to be

resident of Mysuru. Therefore, the notice of the proceeding

was not served on the appellant/wife. In order to direct the

substituted service of notice on a party, the Court dealing with

an application under Order V Rule 20 has to record a

satisfaction that there is reason to believe that a party is

keeping out of the way for the purpose of avoiding service and

for any other reason the summons cannot be served in the

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ordinary way, thereupon the Court has to direct the summons

to be served by affixing a copy thereof in some conspicuous

place in the Court-house, and also upon some conspicuous part

of the house in which the party is known to have last resided or

carried on business or personally worked for gain, or in such

other manner as the Court thinks fit. The Family Court has not

complied with the aforesaid mandatory requirement contained

in Order V Rule 20 of the Code of Civil Procedure and in a

causal and chameleon manner, without recording such a

satisfaction, has directed publication of notice in news paper.

The impugned order dated 17.06.2017 placing the

appellant/wife exparte is procedurally ultra vires and has been

passed in contravention of the provisions of Order V Rule 20 of

the Code of Civil Procedure.

8. The impugned order dated 17.06.2017 and

consequently, decree dated 05.09.2017 cannot be sustained in

law. The impugned order dated 17.06.2017 as well as the

impugned judgment and decree are hereby set-aside. The

matter is remitted to the Family Court to deal with the petition

filed by the respondent afresh on merits after issuing notice to

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the parties. The Family Court shall make an endeavour to

conclude the proceedings expeditiously.

In the result, appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

brn