Punjab-Haryana High Court
Ankita @ Soni vs Akash Tomor on 31 March, 2022
FAO No.5591 of 2017 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.5591 of 2017 (O&M)
Date of decision: 31.03.2022
Smt. Ankita @ Soni
...Appellant
Vs.
Akash Tomor
...Respondent
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
HON'BLE MR. JUSTICE ASHOK KUMAR VERMA
Present: Mr. Ram Pal Verma, Advocate,
for the appellant.
Mr. Akash Vashisth, Advocate,
for the respondent.
***
Ritu Bahri, J. (Oral)
Appellant-wife (Smt. Ankita) has come up in appeal against the
judgment dated 28.02.2017 passded by the District Judge, Family Court,
Sonipat, whereby petiton under Section 13 of the Hindu Marriage Act, 1955
(for short 'the Act'), filed by the respondent-husband (Akash Tomor) for
dissolution of marriage by a decree of divorce has been allowed.
Marriage between the parties was solemnized on 25.04.2012 as
per Hindu rites and rituals at village Salaimpur Kutiayana, District
Ferozabad. However, no child was born out of this wedlock. As per
averments made in the petition under Section 13 of the Act, on 29.08.2012,
respondent-wife (appellant herein) had left her matrimonial home along
with ornaments and other valuable clothes without any reason. Panchayats
were convened to bring her back. Even, the husband-respondent had filed a
petition under Section 9 of the Hindu Marriage Act, 1955, which was
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decreed vide judgment dated 11.03.2015. However, despite the said decree,
the wife did not join the company of the husband. After passing of one
year, when the said decree was not complied with, a petition under Section
13 (1A) (ii) of the Act for dissolution of the marriage was filed by the
husband-respondent, notice of which, was served upon the wife, but she did
not appear before the Family Court and was proceeded against ex-parte.
Ultimately, the said petition was allowed vide judgment dated 28.02.2017.
Feeling aggrieved, appellant-wife filed the present appeal.
Learned counsel for the appellant-wife has argued that before
the Family Court, service upon the appellant had not been effected,
therefore, the impugned decree has been wrongly passed ex-parte.
A perusal of the record of the lower Court shows that notice of
the petition was issued to the appellant-wife by the Court of District Judge,
Family Court, Sonipat, on 12.10.2016 and as per report, service was
effected on 04.11.2016 at village Slaimpur Khutiyana and her aunt (chachi)
received the summons. She also affixed her thumb impression after
accepting the summons in the presence of witnesses Ram Kumar son of
Shyam Pal and Ashok Singh son of Rakesh Singh. For all intents and
purposes, service upon respondent-wife (appellant herein) was duly
effected.
Further, a perusal of the judgment dated 11.03.2015, Ex.P1,
passed by the District Judge, Family Court, Sonipat in a petition under
Section 9 of the Hindu Marriage Act, shows that notice of the said petition
was issued upon the wife (appellant herein), but she failed to appear despite
service and in this backdrop, she was proceeded against ex-parte. Hence,
even in the petition under Section 9 of the Hindu Marriage Act, she was
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proceeded against ex-parte as after service, she did not choose to put in
appearance. The said petition was filed on 27.05.2013 and was decreed on
11.03.2015. After a gap of one year, when the said decree was not complied
with, the husband filed a petition under Sectin 13 of the Act seeking
dissolution of marriage. Even in this petition, the wife had not appeared and
was proceeded against ex-parte by the Family Court.
While passing the impugned judgment, the Family Court had
referred to the decisions given by this Court in Sunny Kumar vs. Mamta
Rani, 2015 (2) RCR (Civil) 263 and Bimla Devi vs. Singh Raj son of
Dasondhi Ram, 377 AIR (Punjab) 167, wherein it was held that when a
spouse fails to obey decree of restitution of conjugal rights or the decree
remains unexecuted for one year, then the husband or wife can seek divorce
under Section 13 (1-A) (ii) of the Act. Further reference has been made to a
judgment passed by Hon'ble the Supreme Court in Dharmendra Kumar vs.
Usha Kumar, 1977 AIR (SC) 2218, wherein it was held that even a wife,
who got a decree for restitution of conjugal rights, but does not accept
husband/s invitation to live with him, is not debarred under Section 23 (1)
(a) of the Hindu Marriage Act, 1955 for obtaining divorce under Section 13
(1A) (ii) of the Act.
In the present case also despite passing of the decree for
restitution of conjugal rights on 11.03.2015, Ex.P1, the appellant-wife did
not join the company of the husband and failed to comply with the said
decree. Consequently, after passing of one year, the husband filed a petition
under Section 13 of the Act for dissolution of the marriage by way of decree
of divorce, which was accepted by the Family Court vide impugned
judgment dated 28.02.2017. In these circumstances, we are of the view that
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the divorce has been rightly granted by the Family Court ex-parte as the
appellant-wife after being duly served, did not chose to appear before the
Court. Further she did not comply with the decree dated 11.03.2015 passed
in a petition under Section 9 of the Hindu Marriage Act.
In view of the above discussion, no ground is made out to
interfere in the impugned judgment passed by the Family Court, Sonipat.
No merits. Dismissed.
(RITU BAHRI)
JUDGE
(ASHOK KUMAR VERMA)
31.03.2022 JUDGE
ajp
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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