Soni Kumari @ Soni Devi vs Mantu Kumar @ Mantu Prasad
2024 Latest Caselaw 191 Patna

Patna High Court

Soni Kumari @ Soni Devi vs Mantu Kumar @ Mantu Prasad on 9 January, 2024

Author: P. B. Bajanthri

Bench: P. B. Bajanthri

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Miscellaneous Appeal No.182 of 2022
======================================================
Soni Kumari @ Soni Devi, aged about 34 years (Female), W/o Mantu Prasad
@ Mantu Kumar, D/o Late Kisto Prasad R/o Village- Gopalganj, P.S.- Thave,
District- Gopalganj, at present R/o Village- Kako, P.S.- Kako, District-
Jehanabad.

                                                          ... ... Appellant/s
                                   Versus
Mantu Kumar @ Mantu Prasad, aged about (Male), S/o Late Prem Prasad,
R/o Village- Kako, P.S.- Kako, District- Jehanabad.

                                          ... ... Respondent/s
======================================================
Appearance :
For the Appellant/s     :    Mr. Vishwajeet Kumar Mishra, Advocate
                        :    Mr. Rohit Kumar Tripathi, Adocate
For the Respondent/s    :    Mr. Deepak Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
        and
        HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
                CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE RAMESH CHAND )

Date: 09-01-2024

Learned counsel for the parties have

been heard.

2. The instant miscellaneous of appeal

is being filed by the appellant to set aside the

order and decree dated 05.11.2016 passed by

learned Principal Judge Family Court, Jehanabad in

Matrimonial Case No. 140 of 2015 whereby and

where-under the learned Principal Judge Family

Court, Jehanabad has been pleased to grant ex- Patna High Court MA No.182 of 2022 dt. 09-01-2024

parte decree of divorce in favor of respondent-

Husband.

3. The marriage among Appellant and

Respondent solemnized in the year 2009 according

to Hindu rites and customs and three children were

born from the married life of the Respondent-

Husband and Appellant-Wife. It is alleged that the

Respondent-Husband has tried many times to

bring the Appellant-Wife to come to her

matrimonial home and to establish the married life,

but Appellant- wife is not ready to come to her

matrimonial home the appellant-Wife is

determined to live alone. She is not prepare and

willing to compromise with the husband to re-

establish married life.

4. Learned counsel for the Appellant

submits that the appellant is legally wedded wife

of the respondent and the marriage of the

appellant was solemnized in the year 2009 with

Hindu rituals. He further submits that the appellant

is living with the respondent-husband from the day

of marriage but the respondent-husband filed

Matrimonial Case No 67 of 2014 for restitution of Patna High Court MA No.182 of 2022 dt. 09-01-2024

conjugal rights in the year 2014 with malafide

intentions for laying foundation for divorce while

the appellant-wife was living peacefully with the

respondent-husband. The counsel for the

Appellant-wife also submits that the Respondent-

husband filed a wrong address and sent summons

notice to the Appellant-wife on wrong address

along with that the newspaper publication was also

done on the wrong place and the appellant-wife

had no knowledge about the said case.

5. The learned counsel of the

Respondent-Husband submitted that he is well

acquainted with the facts and circumstances of this

case and submitted that the appeal filed by the

appellant-wife is not maintainable in the eye of law

and stated that proper notice has been served to

the Opposite Party-Wife in the Matrimonial Case

No. 67 of 2014 before the learned Family Court,

Jehanabad for restitution of conjugal rights but it

has been wrongly stated by the Appellant-wife in

para 1 that the Matrimonial Case No. 67 of 2014 of

filed for dissolution of marriage. The Learned

Counsel further submits that the Appellant-wife Patna High Court MA No.182 of 2022 dt. 09-01-2024

appeared on 20.06.2014 along with her

Vakalatnama but did not file her written statement

and after several dates, the Appellant-wife did not

appear. Thereafter, the Learned family Court,

Jehanabad made an ex-parte order and judgment

on 10.12.2014. Thereafter the Respondent-

Husband filed a Matrimonial case No. 140 of 2015

against the Appellant-wife under section 13 (A) of

Hindu Marriage Act for dissolution of marriage, for

which notice of summons was issued to the

Appellant-wife on several dates by speed-post and

thereafter service of notice through newspaper

publication was also undertaken, but the Appellant-

wife did not appear and subsequently ex-parte

judgment was passed on 26.08.2016 in favour of

the Respondent-husband. The Learned counsel

also submitted that the Appellant-wife has also

submitted a self-declaration on 05.05.2017 stating

that she does not want to continue her conjugal

life with the Respondent-Husband.

6. The arguments have been

completed by only Respondent-Husband in the

present matter before the Court of Principal Judge Patna High Court MA No.182 of 2022 dt. 09-01-2024

Family Court, Jehanabad vide Matrimonial Case No.

140 of 2015, whereas, the Appellant-Wife was

remained absent before the learned Family Court,

and service of notice was not completed. The

registry summons received on 07.05.2016 by the

Ld. Trial Court was also a blank document enclosed

in an envelope.

7. Dealing with the present case,

learned trial Court (Family Court) recorded the

findings and the appellant-wife was not present

during the entire proceeding of the Matrimonial

dispute. Therefore, the Family Court has decided

the matter without hearing the Opposite Party-Wife

proceeded to pass an ex-parte judgment in favor of

the respondent- husband.

8. Before reaching the finding by this

Court, there was no attempts of reconciliation

between the husband and wife which is evident

from several orders of this Court as well as the

Family Court.

9. On the basis of pleadings of the

parties, the following points are formulated for

determination of the present appeal:-

Patna High Court MA No.182 of 2022 dt. 09-01-2024

"Whether summons has been duly served to the Appellant-Wife or not?"

10. For the purposes of examining as

to whether the ex parte decree was rightly passed

by the trial Court, we have perused the record of

the trial Court, from which it can be gathered that

the suit was filed on 16.12.2015 and on

22.12.2015 the Family Court directed for issuance

of summons. On the next date i.e., 04.03.2016, the

Family Court observed that the registered notice

has been returned unserved with endorsement

that the notice has left the place. Thereafter on

07.04.2016 the notice was also unserved. The

registered postal summon received on

07.05.2016 was a blank paper enclosed in an

envelope. Several notices were sent upon the

address of the respondent, yet the summons could

not be served on such address, therefore, it

appears, the defendant was avoiding/refusing to

accept notice, thus substituted service by

newspaper publication was necessary. The prayer

for substituted service was allowed by the trial Patna High Court MA No.182 of 2022 dt. 09-01-2024

Court and the notice was published in the

Newspaper dated 06.08.2016 and the Ld. Court

received a copy of the same on 30.08.2016. After

giving the last chance to the defendant to appear

before the Court on 4.11.2016, the Family Court

proceeded to pass an ex parte judgment and order

and it was passed on 05.11.2016.

11. It is argued that the appellant-

wife's address i.e., Soni Devi, D/o Late Kishto

Prasad, Resident of- Gopalganj, P.S. Thawe, Dist.

Gopalganj, which is the address mentioned in the

present appeal also, therefore, the address was

proper but the postman never tendered the notice

to the appellant and as such at the first instance,

genuine effort was not made to serve the

appellant.

12. Since the appellant has not

avoided to accept the notice at any point of time,

the order of newspaper publication was bad in law

Per contra, learned counsel for the respondent-

Husband would argue that the notice by way of

newspaper publication is sufficient notice of the

proceedings to the appellant-wife and since Patna High Court MA No.182 of 2022 dt. 09-01-2024

despite such newspaper publication the appellant

failed to appear, the trial Court rightly proceeded

ex parte and the impugned judgment and decree

does not call for any interference.

13. We have referred the provisions

contained in CPC to observe Rule 17 of Order 5 as

prescribes the procedure when defendant refuses

to accept service, or cannot be found. It provides

that if the defendant cannot be found, 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 or annexed thereto stating that he has so

affixed the copy, the circumstances under which

he did so, and the name and address of the person

by whom the house was identified and in whose

presence the copy was affixed. Under Rule 19 of

Order 5 of the CPC examination of the serving

officer is must where a summons is returned under

Rule 17, as above. The Court may proceed to Patna High Court MA No.182 of 2022 dt. 09-01-2024

invoke Rule 20 to direct service by affixing in some

conspicuous place in the house and also upon

some conspicuous part of the house (if any) in

which the defendant 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. Thus, before proceeding to direct substitute

service the procedure prescribed under various

rules of Order 5 of the CPC which are:-

"Rule 9 - Delivery of summons by Court -

(1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court. (2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and where he is such an officer, the summons may be sent to him in such manner as the Court may direct.

(3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court:

Provided that the service of summons under this sub-rule shall be made at the expenses of the Patna High Court MA No.182 of 2022 dt. 09-01-2024

plaintiff.

(4) Notwithstanding anything contained in sub-

rule (1), where a defendant resides outside the jurisdiction of the court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of Rule 21 shall not apply.

(5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub- rule (3) when tendered or transmitted to him, ' - the Court issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons. (6) The High Court or the District Judge, as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1).

Rule 12: Service to be on defendant in person when practicable, or on his agent.-

Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on Such agent shall be sufficient. Rule 15: Where service may be on an adult member Patna High Court MA No.182 of 2022 dt. 09-01-2024

of defendant's family.- Where in any suit the defendant is absent from his residence at the time when the service of summons 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 and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.

Explanation: A Servant is not a member of his family within the meaning of this rule. Rule 17 Procedure when defendant refuses to accept service, or cannot be found.-

Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when 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 and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, 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 or annexed thereto stating 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 'whose presence the copy was affixed.

Rule 19: Examination of serving officer.-

Where a summons is returned under rule 17, 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 inquiry Patna High Court MA No.182 of 2022 dt. 09-01-2024

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. Rule 20. Substituted service.-

(1) Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the court shall order 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 (if any) in which the defendant 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. (1A) Where the court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.

(2) Effect of substituted service--Service substituted by order of the court shall be as effectual as if it had been made on the defendant personally.

(3) Where service substituted, time for appearance to be fixed--Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require."

14. Thereafter, this Court has

referred to the Supreme Court's decision in the

matter of Smt. Yallawwa v. Smt. Shantavva,

AIR 1997 SC 35 observed in paragraphs No. 17:-

"17. The Trial Court could not have almost Patna High Court MA No.182 of 2022 dt. 09-01-2024

automatically granted the application for

substituted service without taking steps for serving

the respondent by ordinary procedure as laid down

by Order 5 Rules 12, 15 and 17 of the CPC. It must

be kept in view that substituted service has to be

resorted as the last resort when the defendant

cannot be served in the ordinary way and the

Court is satisfied that there is reason to believe

that the defendant is keeping out of the way for

the purpose of avoiding service, or that for any

other reason the summons cannot be served in the

ordinary way. The Hon'ble Supreme Court further

observed that it appears that almost automatically

the procedure of substituted service was resorted

to. In the case at hand also, as mentioned in the

preceding paragraphs, the trial Court has almost

instantly allowed the application under Order 5

Rule 20 of the CPC without recording the

satisfaction about the prerequisites for exercise of

power under Order 5 Rule 20 of the CPC."

15. With regards to Section 9 of

the Family Courts Act, 1984, which underlines the

duty of the Family Court while dealing with Patna High Court MA No.182 of 2022 dt. 09-01-2024

matrimonial disputes, it mandates the Family Court

to make efforts for settlement meaning thereby

that the Family Court is not expected to function in

a mechanical manner to dispose of the matter on

technical grounds. But in the present matter, the

Ld. Family Court has not made any attempts of

reconciliation between the Husband and Wife.

Moreover, the Supreme Court in Smt. Yallawwa

(supra) has held that the Ld. Family Court has

passed ex-parte decree of divorce in a perfunctory

manner without being satisfied about the service

of notice. The Provision relating for Section 9 of the

Family Courts Act 1984 provides the:

"Duty of Family Court to make efforts for settlement.

(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit. (2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.

3) The power conferred by sub-section (2) shall be Patna High Court MA No.182 of 2022 dt. 09-01-2024

in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings."

16. The Apex Court in the matter of

Naresh Chandra Aggarwal vs Bank of Baroda

AIR 2001 SC 1253: (2001) 3 SCC 163 observed

that- "When a party is sought to be impleaded in a

legal proceedings service of notice on such party

cannot be a mere formality but should, in fact, be a

reality."

17. In the case at hand, the trial

Court directed for issuance of summons on

04.05.2016 without specifying that the summon

has to be issued by registered post, yet the

plaintiff paid the process fee for service by

registered post and thus, there was no effort by

the trial Court to serve the defendant by ordinary

mode. In the absence of any order for sending the

notice by registered post, sending of such notice

was itself contrary to the Trial Court's order.

18. Moreover, the Supreme Court in

Smt. Yallawwa (supra) has held that the trial

Court could not have almost automatically granted

the application for substituted service without taking Patna High Court MA No.182 of 2022 dt. 09-01-2024

steps for serving the respondent by ordinary

procedure as laid down by Order 5 Rules 12, 15 and

17 of the CPC. Thus, the effort to serve the

respondent by ordinary mode is the primary

requirement. This is so because, the process server

is an employee and agent of the Court, whereas the

employee of the postal department i.e., the postman

is an outsider.

19. When the effort to serve the

defendant in terms of the procedure prescribed

under Rules 12, 15 & 17 of Order 5 CPC has not

been followed, the order for service of notice by

publication is itself rendered without satisfaction

that the defendant is avoiding to receive notice. It

appears, the trial Court has allowed the application

in a mechanical manner without even examining the

postman who has tried to serve the notice.

Moreover newspaper daily publication namely

'Prabhat Khabar' dated 06.08.2016 in Patna edition

for service of notice was indifferent district with

reference to circulation.

20. After considering the facts and

circumstances of this case and materials available

on record along with the provisions of the laws laid Patna High Court MA No.182 of 2022 dt. 09-01-2024

down has not been fulfilled and it is crystal clear

that order of summons was not issued properly

against the Appellant-wife and we are fully satisfied

that the order proceeding ex-parte against the

defendant was not in accordance with law,

therefore, the order and decree passed by the trial

Court is hereby set- aside.

21. In view of the facts and

circumstances of the case, we direct the parties to

appear before the trial Court on 05.03.2024. It is

also directed that the appellant shall submit her

written statement when she appears before the

learned trial Court on 05.03.2024 and thereafter the

trial shall be commenced and concluded within a

period of six months from 05.03.2024. Party shall

co-operate in the proceedings.

(Ramesh Chand Malviya, J)

(P. B. Bajanthri, J) Brajesh Kumar/-

AFR/NAFR             AFR
CAV DATE             13.12.2023
Uploading Date       09.01.2024
Transmission Date