Manipur High Court
Poonam Devi vs Anil Prasad on 26 May, 2022
DB Item No. 6
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
Mat.App. No. 5 of 2021
Poonam Devi, aged about 33 years, D/o Rajendra Prasad,
resident of Telipati, near Telipati Temple, P.O. & P.S. Porompat,
Imphal East, Manipur.
...Appellant
- Versus -
Anil Prasad, aged about 41 years, S/o Late Deochand Prasad,
resident of Mantripukhri, P.O. Porompat, P.S. Heingang, District
Imphal East, Manipur.
...Respondent
B EF O R E
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR
For the appellant : Mr. A. Golly, Advocate
For the respondent : Mr. Kh. Santa, Advocate
Date of Judgment : 26-05-2022
JUDGMENT
26-05-2022
Sanjay Kumar (C.J.),
[1] This appeal, filed under Section 19(1) of the Family Courts Act,
1984, arises out of the judgment and decree dated 16-01-2020 passed by
the Family Court, Imphal East at Lamphelpat, in Mat. (Div.) Suit No. 49 of
2019. The defendant-wife in the said divorce suit is the appellant. The
respondent-husband filed the suit seeking dissolution of their marriage
under Section 13(1)(ia) of the Hindu Marriage Act, 1955. By the ex parte
judgment and decree dated 16-01-2020, presently under appeal, the Family
Court accepted his plea and granted a decree of divorce on the ground of
cruelty. Hence, this appeal.
[2] Heard Mr. A. Golly, learned counsel for the appellant-wife, and
Mr. Kh. Santa, learned counsel for the respondent-husband.
[3] Mr. A. Golly, learned counsel, would contend that the judgment
under appeal cannot be sustained on a preliminary technical ground,
inasmuch as no exercise was undertaken by the Family Court to ascertain
whether service of summons was effected properly upon the defendant in
the suit, viz., the appellant-wife. He would point out that the suit was filed by
the respondent-husband on 02-08-2019 and on the same day, the Family
Court issued summons to the defendant in the suit, returnable on
22-08-2019. Thereafter, on 22-08-2019, the Family Court noted that there
was no representation for the defendant; that she had refused to receive the
summons and set her ex parte. Mr. A. Golly, learned counsel, would assert
that the Family Court lost sight of the procedure prescribed under the Code
of Civil Procedure, 1908 as well as the rules framed by this Court in the
context of proceedings before the Family Courts in the State of Manipur.
[4] This Court finds merit in the contention of the learned counsel.
Order V Rule 17 CPC prescribes the procedure to be followed when the
defendant refuses to accept service or cannot be found. The provision states
to the effect that where the defendant refuses to sign the acknowledgment
or where the serving officer cannot find the defendant, the serving officer
shall affix a copy of the summons on the outer door or some other
conspicuous part of the house in which the defendant ordinarily resides or
carries on business or personally works for gain, and shall then return the
original to the Court from which it was issued, with a report endorsed thereon
that he has so affixed the copy, the circumstances under which he did so,
and the name and address of the person, if any, by whom the house was
identified and in whose presence the copy was affixed. Order V Rule 19
CPC details the procedure to be then followed by the Trial Court. It states to
the effect that where the summons is returned under Order V Rule 17 CPC,
the Court shall, if the return under that Rule has not been verified by the
affidavit of the serving officer, and may, if it has been so verified, examine
the serving officer on oath, or cause him to be so examined by another
Court, touching his proceedings, and may make such further enquiry in the
matter as it thinks fit; and shall either declare that the summons has been
duly served or order such service as it thinks fit. On the same lines, Rule 12
of the Family Court (High Court of Manipur) Rules, 2019, provides that it has
to be shown either by affidavit or application or other evidence that the
notices, summons issued in relation to proceedings before the Family Court
were actually served upon the respondents.
[5] Mr. A. Golly, learned counsel, would assert that no affidavit was
filed by the serving officer verifying that the defendant-wife had refused to
receive the summons. Mr. Kh. Santa, learned counsel, fairly concedes that
this is a fact.
[6] If that is so, Order V Rule 19 mandates that the Court should
compulsorily examine the serving officer on oath before coming to a
conclusion as to whether the summons was duly served. Admittedly, the
Family Court, Imphal East at Lamphelpat, did not adhere to and abide by
this procedure. Without even verifying whether the defendant-wife was
properly served, in keeping with the letter of the law, the Family Court set
her ex parte and proceeded to decide the suit in her absence.
[7] In the light of this fundamental lapse on the part of the Family
Court, the judgment and decree under appeal, dissolving the marriage
between the parties by way of an ex parte decree of divorce, cannot be
sustained.
[8] The appeal is accordingly allowed on this short ground, setting
aside the judgment and decree dated 16-01-2020 passed by the Family
Court, Imphal East at Lamphelpat, in Mat. (Div.) Suit No. 49 of 2019, and
remitting the said suit for consideration afresh from the stage of service of
the summons upon the defendant-wife. Keeping in mind the long lapse of
time since its institution, the Family Court shall endeavour to dispose of the
suit expeditiously, and preferably within six months from the date of receipt
of a copy of this judgment.
In the circumstance, there shall be no order as to costs.
JUDGE CHIEF JUSTICE
Victoria
NINGOM Digitally signed
by NINGOMBAM
BAM VICTORIA
Date: 2022.05.27
VICTORIA 17:14:38 +05'30'
