Vijay Upadhyay vs Smt. Lalita
2025 Latest Caselaw 16708 Raj

Rajasthan High Court - Jodhpur

Vijay Upadhyay vs Smt. Lalita on 4 December, 2025

Bench: Farjand Ali, Anand Sharma

[2025:RJ-JD:51956-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 D.B. Civil Misc. Appeal No. 339/2025

Vijay Upadhyay S/o Sh. Ganpat Lal, Aged About 33 Years, R/o
Village Batherakhurd, Teh. Vallabhnagar, Dist. Udaipur, Raj. At
Present R/o Village Ravpura, Post Jarola, Teh. Barsad, Dist.
Anand, Gujrat.
                                                                      ----Appellant
                                       Versus
Smt. Lalita W/o Sh. Vijay Upadhyay, Aged About 31 Years, R/o
Brahampuri, Kanod, Dist. Udaipur, Raj.
                                                                    ----Respondent


For Appellant(s)             :     Mr. Shambhoo Singh Rathore
                                   Mr. Chain Singh
                                   Ms. Ayushi Rathore
For Respondent(s)            :     Mr. Anuj Sahlot
                                   Mr. Digvijay Singh



               HON'BLE MR. JUSTICE FARJAND ALI
             HON'BLE MR. JUSTICE ANAND SHARMA

                                 JUDGMENT

(PER HON'BLE SHARMA, J.)

DATE OF CONCLUSION OF ARGUMENTS :- 01/12/2025 DATE ON WHICH JUDGMENT IS RESERVED:- 01/12/2025 FULL JUDGMENT OR OPERATIVE PART :- FULL JUDGMENT DATE OF PRONOUNCEMENT :- 04/12/2025

1. This DBCMA under Section 19 of the Family Courts Act, 1984

has been filed by the appellant-husband against the order dated

26.11.2024 passed by learned Judge, Family Court No.1, Udaipur

in Civil Misc. Case No.42/2019 whereby an application moved on

his behalf under Order IX Rule 13 read with Section 151 CPC for

setting aside judgment and decree dated 20.09.2017, has been

dismissed.

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2. Brief facts giving rise to the instant appeal are that the

respondent-wife filed one divorce petition under Section 13 of the

Hindu Marriage Act, 1955 against the appellant-husband for

dissolution of their marriage, solemnized on 15.05.2010.

3. It is stated that on the aforesaid divorce petition, notices

were issued for effectuating service upon the appellant through

registered post with AD on 23.03.2017, returnable on 12.05.2019.

Thereafter, it was mentioned in the order-sheets that despite

service, the appellant did not appear before the court below.

However, on account of the fact that the Presiding Officer was on

leave, the matter was kept for 20.07.2017. On that day, ex-parte

proceedings were drawn against the appellant; and in furtherance

thereof ex-parte judgment and decree dated 06.03.2018 was

delivered by the court below for granting decree of divorce in

favour of the respondent-wife and resultantly the marriage

solemnized between the parties has been dissolved.

4. In the application under Order IX Rule 13 read with Section

151 CPC filed by the appellant, it has been averred that no notice

were ever served upon the appellant-husband. This was for the

reason that, at the relevant time when the notices were issued, he

was residing at Village Raopura, Post Jarola, Tehsil Borsar, District

Anand (Gujarat). However, in the divorce petition, primary address

of the appellant was wrongly shown as resident of Batheda,

District Udaipur, even though the another address of Raopura,

District Anand was mentioned, yet while sending notices, the court

below committed a serious mistake as the notice through process

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server was allegedly sent to the appellant only at the address -

Villlage Batheda, District Udaipur. It is submitted that such

address was totally incomplete as it did not specify the Tehsil in

which Village Batheda is situated, whereas there are more than

one village named as Batheda in District Udaipur. It is submitted

that although there were directions for sending notices through

registered post also, yet there is no reference in the order-sheets

to show as to whether the notices sent through registered post

were served upon the appellant-husband or not.

5. While referring the report of service drawn by the process

server, it was submitted on behalf of the appellant that although

the notices were never served upon the appellant by the process

server, yet an incorrect report has been given and the signatures

shown at the summons were fake. It is reiterated that on the

report made by the process server, no date of service has been

mentioned and even otherwise at the relevant time, the appellant

was residing in District Anand at Gujarat, therefore, no question of

personal service at Village Batheda District Udaipur was possible.

6. It is further submitted that apart from the aforesaid divorce

petition, other litigations were also going on between the

appellant-husband and the respondent-wife. In the criminal case

lodged by the respondent-wife, the appellant continued to appear

from 26.09.2016 to 11.04.2019, yet during entire proceedings, it

was never disclosed by the respondent-wife that she had

instituted any divorce case against the appellant-husband. No

such reference or indication was ever given by her in the revision

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petition filed by the appellant before learned Additional District

and Sessions Judge No.3, Udaipur. It was highlighted that the

respondent-wife has been habitual of forging the documents, as

earlier also in order to get pension under the Social Security

Pension Scheme, floated by Social Justice and Empowerment

Department, Government of Rajasthan, a false affidavit was filed

by her on 14.05.2013 mentioning that divorce between the

appellant and the respondent-wife had taken place, whereas on

that date, no such decree of divorce was in existence. It was

submitted that first time, the appellant came to know about

decree of divorce on 03.06.2019 before the court at Kanod, where

such information was furnished by the respondent-wife herself

through application in writing. Immediately after having the

knowledge, the appellant submitted an application for obtaining

certified copy of judgment and decree dated 24.06.2019 and

without causing any further delay, he filed the application under

Order IX Rule 13 read with Section 151 CPC for recalling and

setting aside ex-parte proceedings dated 20.09.2017 as well as

judgment and decree dated 06.03.2018.

7. It is submitted by learned counsel for the appellant that the

appellant is keen to contest the divorce petition on merits and

since he was never served summons of the divorce petition,

therefore he had bonafide and plausible reasons for non-

appearance before the Family Court, however, without properly

examining the question of valid service upon the appellant, ex-

parte decree of divorce has been granted against the appellant

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which is causing grave prejudice and miscarriage of justice to the

appellant.

8. The appeal was vehemently opposed by learned counsel for

the respondent-wife and it was submitted that the appellant

deliberately avoided appearance before the Family Court, despite

there being valid service of summons upon him. It was

emphasized that the signatures of receiving summons put-over

the notices are not forged and have been put by the appellant

himself. However, only for the purpose of causing delay, as well as

to harass the respondent-wife, the appellant did not appear before

the court below. It was further submitted that the appellant has

not produced any oral evidence before the Family Court to prove

the allegations levelled by him in application under Order IX Rule

13 read with Section 151 CPC, whereas the respondent-wife

examined herself and produced documentary evidence to negate

the allegations of service through forgery. It is submitted that the

court below has passed order dated 26.11.2024 after meticulously

examining the facts of the case, material on record and law

prevailing at the relevant time, hence there is no scope of

interference in the instant appeal and the same is liable to be

dismissed.

9. We have heard rival submissions put-forward by learned

counsel for the parties and perused the record.

10. As the dispute revolves around the process of service of

summons in Divorce Petition before the Family Court, it is relevant

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to indicate that as per Section 10 of the Family Courts Act, 1984,

the provisions of CPC are applicable in the proceedings conducted

by the Family Court and hence, the provisions with regard to

service of summons as mentioned in CPC are also attracted for

regulating the service of summons before the Family Courts also.

11. Order V Rule 9 CPC prescribes the mode of issuance of

summons and Order V Rule 9 (3) read with Rule 10 CPC further

lays down that summons may also be sent through registered post

with acknowledgment due in addition to ordinary process through

process server. In the instant case, on perusal of order sheets of

divorce petition filed before the Family Court, it emerges that

although summons were sent through registered post with AD, yet

there is no report to satisfy as to whether such summons were

ever served upon the appellant or not.

12. It has not been disputed by learned counsel for the

respondent that summons which is stated to have been served,

were sent through process server. However, bare perusal of

original summons available in the record of Family Court would

reveal that said summons were sent to the appellant-husband by

showing his address as R/o Batheda, District Udaipur, which is

evidently an incomplete address, as the complete address of the

appellant was Village Batheda Khurd, Tehsil Vallabh Nagar, District

Udaipur. Hence, neither name of the village was properly

mentioned in the summons, nor was there any reference of Tehsil.

Therefore, in light of submissions made by learned counsel for the

appellant that there are more than one village in District Udaipur

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having the name of Batheda, a reasonable doubt would arise with

regard to veracity of effectuation of service of summons upon the

appellant without there being complete address on the summons.

13. Meticulous examination of original summons would also

reveal that at the top of summons ' fot; dqekj' has been written

which is being reported by the process server as the signatures of

the appellant-husband but the same has been disputed by the

appellant referring the same to be forged signatures. However, it

also comes out by perusal of the original summons that the

alleged signatures of Vijay Kumar are existing just underneath one

endorsement of 'receiving the summons and copy of petition' by

writing in hindi "leu udys izkIr gqbZ". Such endorsement of

'receiving summons and copy of the petition' has apparently been

drawn in the same handwriting in which the process server has

written his report. There is manifest and explicit difference in the

writing as well as use of pens while mentioning such endorsement

of 'receiving summons and copy of petition' as well as in the

writing and pen used for the signatures allegedly shown to be of

the appellant-husband. We are of the opinion that when the

recipient of the notice is an educated person, the endorsement

made above his signature was supposedly made by himself not by

the process server. As it is evident from bare perusal of the

original summon, the endorsement was made by someone else

and the signature was appended by a different person. Certainly a

grave suspicion arises in the manner of service based upon which,

the Family Court decided to proceed ex-parte and subsequently,

decreed the petition.

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14. Such contradictions, variances and inconsistencies would put

a reasonable cloud of suspicion over the report of service of

summons. However, while deciding the application under Order IX

Rule 13 read with Section 151 CPC, the Family Court has

overlooked these crucial and significant facts.

15. Merely on account of the fact that the appellant husband did

not produce any oral evidence to support his application under

Order 9 Rule 13 read with Section 151 CPC would not be the only

ground to non-suit him, more so when the aforesaid facts are

conspicuous to infer that proceedings of service of summons have

not been effectuated in proper manner. While examining the

record as well as the facts of the present case, we cannot overlook

the significant fact that proceedings before the Family Court are

usually conducted by the parties by appearing in person who are

not expert of procedure in legal proceedings. Even otherwise, the

disputes before the Family Court arisen after marital discord ought

not to have been decided without providing due opportunity of

hearing to any of the party. Hyper-technical view regarding

procedure in deciding the matters before the Family Court may

certainly cause failure of justice to the party, who has not been

heard.

16. This Court while deciding similar matter arising out of the

proceedings under Order IX Rule 13 CPC drawn by the Family

Court, has examined different provisions of the Family Courts Act,

1984 and CPC, in the case of DBCMA NO.5099/2018 (Smt. Teena

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versus Kanhaiyalal, decided on 14.05.2025, at Jaipur Bench)

wherein following observations have been given:-

"21. Be that as it may, looking to the nature of the dispute involved in the instant case relating to matrimonial problem between the parties as well as the purpose of constitution of the learned Family Court, we are of the considered view that the matrimonial dispute is not just a legal dispute but is a social concern and family problem; therefore, while enacting the Family Courts Act, 1984, in view of Section 13 of the Act of 1984, a specific provision was inserted by the Legislature that no party to a proceeding before the learned Family Court shall be entitled to be represented by legal practitioner. Thus, the purpose was altogether clear that instead of dealing with settlement of disputes relating to marriage and family affairs, a different approach was to be adopted which should be far from legal technicalities. Hence, under such circumstances, we can safely hold that a party to a matrimonial litigation cannot be deprived of his/her right to put his/her case before the Court by way of filing pleadings or adducing evidence, merely on account of fact that on a particular day, he/she was not present before the Court.

22. On examining the record, it is made clear that the wife is keen to contest the matter on merits and only therefore, for last so many years, she is trying her level best for setting aside the ex-parte decree with a prayer to provide her opportunity of hearing, so that she can put forward her defence before the Court. In pith and substance, the wife is simply making a request to decide the dispute between the parties on merits after recording of evidence. We are satisfied that in view of the aforesaid provisions of Civil Procedure Code as well as the material on record, the wife is entitled for hearing before the Family Court on merits in application under Section 13 of the Act of, 1955.

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23. It would be relevant to refer that the learned Single Judge of this Court in the case of Shyam Lal Vs. Smt. Leelawati reported in AIR2007RAJ93 has held as under:-

"10. A matrimonial dispute is not just a legal dispute, but more importantly it is a family problem and a social concern. Hence, matrimonial disputes should not be viewed from the glasses of legal technicalities. It should be appreciated at the human level of being a conflict between a husband and wife. Such issues should be dealt with sensitively rather than mechanically, as has been done in the present case.

17. The aforesaid view has further been followed by this Court in

the judgment dated 11.07.2025 at Jaipur Bench, passed in DBCMA

No.298/2025 (Shahid Ali versus Smt. Afsana).

18. We are in complete agreement with the view taken by

Coordinate Bench in the aforesaid cases of Smt. Teena (supra)

and Shahid Ali (supra).

19. In light of foregoing discussion, the instant appeal succeeds

and order dated 26.11.2024 passed by Family Court No.1, Udaipur

is hereby quashed and set aside. The application under Order IX

Rule 13 read with Section 151 CPC filed by the appellant-husband

is allowed and consequently, the ex-parte judgment and decree

dated 06.03.2018 also stands quashed. Parties are directed to

appear before the Family Court No.1, Udaipur on 05.01.2026 for

further proceedings. Looking to the nature of dispute as well as

the fact that the application under Section 13 of the Hindu

Marriage Act, 1955 was filed by the respondent wife long back, we

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find it appropriate to direct the appellant-husband to file his reply

to the application under Section 13 of the Hindu Marriage Act,

1955 within a period of one month from the date of re-initiation of

proceedings by the Family Court, Udaipur in compliance of this

order and the Family Court is also expected to expedite the

proceedings.

20. In view of above, the appeal filed by the appellant-husband

stands allowed. Record of the Family Court be sent back forthwith.

                                   (ANAND SHARMA),J                                                    (FARJAND ALI),J
                                    6-Sudhir Asopa/-




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