Karnataka High Court
Smt P V Prema vs Sri T K Manjunath on 22 June, 2022
Author: Alok Aradhe
Bench: Alok Aradhe
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.7043 OF 2013 (FC)
BETWEEN:
SMT P V PREMA
W/O SRI.T.K.MANJUNATH,
AGED ABOUT 32 YEARS,
RESIDENT OF PILLUGUMPE VILLAGE
HOSKOTE TALUK - 562 114
BENGALURU RURAL DISTRICT.
... APPELLANT
(BY SRI AMARESH A ANGADI, ADVOCATE)
AND
SRI T K MANJUNATH
S/O K.D.KRISHNACHARI,
AGED ABOUT 39 YEARS,
RESIDING AT NO.207/1,
7TH CROSS, 1ST FLOOR,
CUBBONPET MAIN ROAD,
BENGALURU - 560 002.
...RESPONDENT
(SRI. G. PAPI REDDY, ADVOCATE - ABSENT)
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THIS MFA IS FILED UNDER SECTION 19 (1) OF
FAMILY COURT ACT, 1984 PRAYING TO a) SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE PASSED BY THE
HON'BLE COURT OF ADDITIONAL PRINCIPAL JUDGE,
FAMILY COURT - IV, BENGALURU CITY IN
M.C.NO.3158/2011 DATED 25.02.2013 SO FOR RELATED
TO IN ALLOWING THE PETITION UNDER SECTION 13(1) (ia)
OF HINDU MARRIGE ACT AND TO CONFIRM THE SAME IN
DISMISSING THE PETITION UNDER SECTION 30(1) (i) AND
30 (1) (ib) OF HINDU MARRIAGE ACT; b) TO REMAND THE
MATTER IN M.C.NO.3158/2011 FOR FRESH DISPOSAL IN
PROVIDING OPPORTUNITY TO THE APPELLANT HEREIN IN
SO FOR RELATED TO ALLOWING THE PETITION BY THE
HON'BLE ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT-
IV, BENGALURU CITY UNDER SECTION 13(1) (ia) OF HINDU
MARRIAGE ACT, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS MFA HAVING BEEN HEARD AND RESERVED ON
09.06.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE
FOLLOWING:
JUDGMENT
Being aggrieved by the grant of Ex-parte decree of divorce in a petition filed under Section 13(1)(i) and 13(1)(i-b) of Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for short) at the instance of her husband, appellant has filed this appeal under Section 19(1) of the Family Courts Act, 1984, with a prayer to set aside the impugned judgment and decree and remand 3 the case for fresh disposal after providing opportunity of hearing to her.
2. For the sake of convenience the parties are referred to by their rank before the trial Court.
3. Brief facts giving rise to the filing of the appeal are that the marriage of petitioner and respondent was solemnized on 18.11.2004 at Devaki Kalyana Mantapa, Hoskote. After the marriage they led their marital life at Bengaluru. Even prior to the marriage, petitioner and respondent were related. Through the wedlock, a daughter was born on 29.08.2005. Respondent is a beautician running a beauty parlour at Hoskote. She is also a tailor and tutor to primary and high school students and earning more than Rs.30,000/-p.m. 3.1 It is the further case of the petitioner that on 03.03.2009, the respondent left the company of the petitioner abruptly along with her belongings and since 4 then she is residing with her parents. In spite of advise by elders and panchayatdars, respondent has failed to join the petitioner in the matrimonial home. After the birth of the child, respondent started behaving strangely. She was saying that she is not interested in marrying the petitioner. On the other hand, she was interested in one Nagendra Kumar. In fact respondent had got issued a legal notice dated 16.09.2009 calling upon the petitioner to take her and her child to the matrimonial home, for which petitioner has sent reply dated 29.09.2010 stating that she has made unnecessary and unfounded accusation and directed her to return to the matrimonial home. Instead of returning to the matrimonial home, respondent has filed a case in Crl.Misc.85/2009 against the petitioner seeking maintenance on false accusations. Petitioner was always ready and willing to take back the respondent. However, she never showed any interest to return to the matrimonial home.
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3.2 Respondent is averred to be involved in illicit relationship with Nagendra Kumar, who is a worker in the residence of her father since last 5-6 years. The said Nagendra Kumar was giving repeated threatening calls to the petitioner and his family members. At the request of father of respondent, on 13.04.2010 at 10.00 a.m, petitioner went to his residence along with elders. However, respondent's father was not available and other members of the family abused the petitioner and other elders accompanying him. It is averred that the said Nagendra Kumar threatened them. Therefore, being disappointed they returned. In this regard, petitioner has lodged a complaint viz., Cr.No.86/2010.
3.3 It is the further case of the petitioner that he filed M.C.No.1560/2010 seeking decree for restitution of conjugal rights on 29.05.2010. However, the said petition came to be dismissed on 30.07.2011. Therefore, this petition is filed seeking divorce.
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4. The Family Court has sent Court notices to the respondent thrice in addition to simultaneously issuing notice through RPAD. All the six notices have returned unserved with endorsement that at the time of service, respondent was not available at the address. On 14.09.2012, petitioner filed I.A.No.2 under Order V Rule 20 CPC, supported by his Affidavit contending that respondent was intentionally evading service of notice. Taking into consideration the fact that notices sent to the respondent six times i.e., three times through Court and three times through RPAD have returned unserved with endorsement that the respondent was not available at the address at the time of service of notice but at the same time she was prosecuting Misc. Petition against the petitioner while living in the same address, the Family Court has permitted petitioner to issue notice through paper publication.
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5. Accordingly, on 17.09.2012, petitioner got published the notice in Samuktha Karnataka Daily newspaper, which is widely circulated throughout the State of Karnataka, including the place where the respondent is staying. The date of appearance given in the paper publication was 19.10.2012. On that day i.e., 19.10.2012, the Family Court has called out the case of the respondent, but she remained absent. Once again, a month's time was granted by the Family Court for appearance of the respondent and the case was posted to 19.11.2012.
6. On 19.11.2012, when the respondent failed to enter appearance, the Family Court has placed her Ex-parte and has proceeded with the matter.
7. In support of his case, petitioner has examined himself as PW-1 and relied upon Ex.P1 to 12. 8
8. Vide the impugned judgment and decree, though the Family Court dismissed the petition filed by the petitioner under Section and 13(1)(i) and 13(1)(i-b), it has allowed the petition filed under Section 13(1)(i-a) of the Act and dissolved the marriage between the petitioner and respondent.
9. During the course of arguments, the learned counsel representing the appellant submitted that on 16.09.2009, respondent sent a legal notice to the petitioner calling upon him to take back the respondent and their daughter, but he has failed to comply with the said notice and therefore, she has filed maintenance petition in C.Misc.85/2009. To avoid his responsibility of paying the maintenance, petitioner has filed M.C.No.1560/2009, seeking restitution of conjugal rights and has resorted to making false allegations. In the said petition also, respondent was not served. Even though he was appearing in C.Misc.85/2009, intentionally he has 9 not taken any hand summons to the respondent or to her counsel and has managed to obtain an Ex-parte decree of divorce.
9.1 The learned counsel for appellant would submit that the impugned judgment and decree is contrary to the principles of natural justice. She has not been provided with reasonable opportunity to defend herself. The reasons assigned by the Family Court for granting decree of divorce under Section 13(1)(i-a) are not correct. The Family Court has not appreciated the fact that the earlier petition filed by the petitioner in M.C.No.1560/2010 was dismissed by the Family Court on the ground that he has made serious allegations against the respondent. Inspite of there being no evidence to prove that the respondent has treated the petitioner with cruelty, the Family Court has erred in granting decree of divorce under Section 13(1)(i-a) of the Act. 10
9.2 In support of his arguments, the learned counsel representing the appellant has relied upon the following decisions:
(i) Smruthi Pahariya Vs. Sanjay Pahariaya1 (Pahariaya's case)
(ii) M/s Nirja Realators Pvt.Ltd Vs. Janglu, dead by LRs (Nirja Realators' case)2
10. The undisputed facts are that the marriage of petitioner and respondent was solemnized on 18.11.2004 and they are blessed with a daughter born on 29.08.2005. According to the petitioner on 03.03.2009, respondent without any justifiable cause has removed herself from the company of the petitioner and since then she is living separately along with their daughter. He has alleged that respondent is living in adultery with one Nagendra Kumar and that is the reason for her leaving the company of the petitioner. Earlier he filed a petition 1 AIR 2009 SC 2840 2 AIR 2018 SC 753 11 seeking restitution of conjugal rights in M.C.No.1560/2010. In that petition also, respondent remained Ex-parte. However, the said petition came to be dismissed by the Family Court on the ground that he had made allegations against the respondent and in the light of the said allegations, restitution cannot be granted.
11. Once again after issuing legal notice, petitioner has filed M.C.No.3158/2011. In the said petition also, respondent has remained Ex-parte and accordingly, the Family Court has proceeded against the respondent Ex- parte and granted decree of divorce. Respondent has contended that when M.C.No.3158/2011 was filed, C.Misc.No.85/2009 filed by her was pending and petitioner was appearing through counsel in the said petition and he ought to have got the notice of the said petition served on her through her counsel appearing in C.Misc.85/2009. It is further contended that instead the petitioner intentionally chose not to exercise the said 12 option in order to plead his case Ex-parte before the Family Court.
12. Now the question for our consideration in this appeal is whether the notices in M.C.No.3158/2011 and for that matter in M.C.No.1560/2010 which was an earlier petition seeking restitution of conjugal rights, wherein also respondent remained Ex-parte, were sent to the address wherein respondent is living. If so whether respondent has intentionally evaded the service of the said notices.
13. At the outset, it is relevant to note that respondent is not disputing that she is living at the address reflected in the cause title of the petition in M.C.No.3158/2011 as well as in the earlier petition also i.e., M.C.No.1560/2010. It is also relevant to note that this is the address to which petitioner has sent reply notice at Ex.P2 dated 29.09.2009. This reply notice came to be issued by him to the legal notice dated 16.09.2009 13 at Ex.P1 sent on behalf of the respondent, wherein also her address is reflected as resident of Pilla Gumpe Village, Hoskote Taluk, Bengaluru Rural District. It is pertinent to note that Ex.P5 is the petition filed by the respondent in C.Misc.85/2009 against the petitioner seeking maintenance at the rate of Rs.10,000/- to herself and her daughter. In this document also her address is the same as given in the cause title of the petition as well as in the appeal memo. Ex.P13 is the judgment in M.C.No.1560/2010 filed by the petitioner against respondent. In this document also the address of the respondent is the same as given in M.C.No.3158/2011. It is also relevant to note that respondent never disputed that she is residing in the address shown in the cause title.
14. Petitioner filed M.C.No.3158/2011 on 14.09.2011. It has come before the Court on 17.10.2011. On that day, the Family Court had ordered for issue of 14 notice to respondent through Court as well as by RPAD returnable by 07.12.2011. On 21.01.2012, it is noted in the order sheet that the RPAD as well as Court notice have returned unserved with endorsement that the respondent was not available at the time when service was sought to be made. Similarly, the postal envelope is also returned with endorsement that on 7 days continuously the postman has gone to the address, but the addressee was not available.
15. Once again on 24.05.2012, the Family Court has ordered for issue of notice to respondent through Court as well as by RPAD returnable by 13.07.2012. On 13.07.2012, it is noted by the Family Court that the notices sent to respondent have returned with the same reason as at the first instance. However, once again the Family Court has ordered for issue of notice to respondent through Court as well as by RPAD returnable by 04.09.2012. Even for the third time, the notices sent 15 to the appellant have been returned as unserved with the same endorsement i.e., the addressee/respondent is not available, when the process server as well the postman went to effect the service. It is pertinent to note that none of these notices are returned with endorsement that respondent is not living in the said address. Of course it is not the case of the respondent that she is not living in the said address.
16. Under Section 27 of the General Clauses Act, where any Central Act or Regulation made after the commencement of this Act, authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then unless a different intention appears, the service shall be deemed to be effected properly addressing prepaying and posting by registered post, a letter containing the document and unless the contrary is proved to have been effected at the 16 time at which the letter would be delivered in the ordinary course of post. When the respondent is living in the address shown in the cause title and when thrice, the process server has gone to effect service of the notice sent through Court as well as thrice the postman has gone to effect service of the notice sent through RPAD and in fact on each occasion postman has gone to the address and several times (7 times) each time, the respondent has failed to be present at the address and receive the notice, it goes to show that she has intentionally evaded the service of notice.
17. It is also relevant to note that on earlier occasion also, when notice was sent in M.C.No.1560/2010, respondent has failed to receive the same and as such in the said petition also, she was placed ex-parte. Fortunately for the respondent the said petition came to be dismissed and therefore she has not chosen to challenge the same. It is also relevant to note 17 that throughout this appeal, the respondent has not stated any reasons as to why she was not available in the address when the process server as well as postman have gone to effect the service of notice on her.
18. After realizing that the respondent is intentionally evading the service of notice, petitioner has resorted to the provisions of Order V Rule 20 (1A) and requested the Court for issue of notice through paper publication. After examining the conduct of the respondent in not receiving the notice sent thrice both through Court as well as through RPAD for three times, the Family Court has rightly allowed the application and ordered issue of notice through paper publication i.e, in Samyuktha Karnataka, a daily newspaper published throughout the State of Karnataka including villages. Accordingly, the notice has been published in the said newspaper. Inspite of due service of notice and providing 30 days for her appearance and thereafter one more 18 month time given for her appearance, respondent has not chosen to appear before the Court and put forth her defence. In the aforesaid circumstances, we are of the considered opinion that the Family Court is justified in proceeding against the appellant ex-parte.
19. So far as Smrithi Pahariya's case referred to supra relied upon by the learned counsel for respondent is concerned, suffice it to say that it was a joint petition filed by the husband and wife for divorce by mutual consent. In the said case, the husband failed to appear on 2-3 hearing dates. Therefore, the Court issued notice to him and even though the Court was not satisfied that the husband was evading the service, it directed substituted service of summons. Moreover in the said case, the trial Court has preponed the case and proceeded to pass an ex-parte decree. Therefore, in those circumstances the Hon'ble Supreme Court held that there was no due service of notice and the trial Court was 19 not justified in placing the husband ex-parte. However, in the present case, after being satisfied that the wife is intentionally evading service of notice which was sent thrice through the Court as well as through RPAD, the Family Court has resorted to the mode of substituted service. Therefore, this decision is not applicable to the case on hand.
20. Relying upon Nirja Realators's case referred to supra, the learned counsel for respondent submitted that as per Order V Rule 17 CPC, the process server who took the notice for service, on finding the respondent absent should have affixed the notice on the conspicuous part of the house and in breach of the same, there is no due service of notice. It is true that under Order V Rule 17 CPC, a provision is made for affixture of the notice on the conspicuous part of the premises to which address the notice has been sent, the plain reading of this provision makes it clear that this method could be 20 resorted to only when the serving officer comes to the conclusion that the defendant or his agent or any other person who is authorized to receive the notice refuses to sign the acknowledgement or where the Serving Officer after using all due and reasonable deligence cannot find the defendant who is absent from his residence at the time when the 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.
21. However, in the present case these conditions are not fulfilled. Since the Serving Officer did not find the addressee i.e, respondent in the given address when he went to serve the same thrice, he has returned the notice. He did not entertain a doubt that there is no likelihood of respondent being found in the residence within a reasonable time. Therefore, he has returned the notice. As a precautionary measure, the Family Court has also sent the notice by RPAD which was also returned with 21 endorsement that addressee was not available on all the seven dates on which the postman has gone to the address. These circumstances justify the Family Court in ordering for substituted service of notice through paper publication. In the facts and circumstances of the case, the above decision is not applicable to the case on hand.
22. In view of the preceding analysis, we hold that after providing sufficient opportunity to the respondent to hear and put forth her defence, when she has failed to avail the said opportunities and after realizing that respondent is not interested in defending the petition and she is intentionally evading the service, the Family Court has rightly placed her ex-parte and proceeded with the matter. In fact, after appreciating the entire oral and documentary evidence placed on record, the Family Court has rejected the petition filed under Section 13(1) and 13(1) (iii), but allowed the petition under Section 13(1)(i-a). Consequently, the respondent has failed to 22 demonstrate that she had any justifiable reasons in not appearing before the Family Court inspite of coming to know about the filing of the petition.
23. It is also relevant to note that even though this appeal is filed in the year 2013, respondent has not chosen to seek early hearing of the appeal to show her bonafides that she is really interested in joining the petitioner and leading a matrimonial life with him. There was delay of 140 days in filing the appeal. No stay was granted. On 30.07.2014, this Court has observed that on the last four successive dates of hearing, respondent in the appeal i.e., the husband is present before the Court and submitted that he is ready and willing to take his wife and child along with him. However, for the last three dates the appellant i.e., the wife is not present. On 30.07.2014, the appellant i.e., wife was present before the Court and submitted that she is not willing to go with the respondent. Ultimately, on 02.07.2021, this Court 23 has noted the submission of learned counsel for the husband that the husband has contracted second marriage.
24. The conduct of the appellant-wife before this Court goes to show that she is not at all interested in living with the petitioner. This also supports the findings of the Family Court that she has intentionally evaded the service of notice. Taking into consideration these aspects, we are of the considered opinion that no justifiable grounds are made out by the respondent-wife to recall the impugned judgment and decree and remand the same for fresh disposal. At this point of time no purpose would serve by providing the appellant with another opportunity as it appears that she is not interested in living with the petitioner-husband.
In the result, the appeal fails and we proceed to pass the following:
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ORDER
(i) Appeal filed by respondent - wife is hereby dismissed.
(ii) The registry is directed to transmit the trial Court record along with copy of this judgment.
Sd/-
JUDGE Sd/-
JUDGE RR