Karnataka High Court
Smt Kritu Amith @ Reshma Prakash ... vs Amith Prakash on 29 September, 2016
Bench: Jayant Patel, S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER 2016
PRESENT
THE HON'BLE MR.JUSTICE JAYANT PATEL
AND
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
M.F.A.NO.394/2014(FC)
BETWEEN :
SMT. KRITU AMITH @ RESHMA PRAKASH BAHERANI
W/O AMITH PRAKASH
D/O SMT. BHARATI PRAKASH BAHERANI
AGED ABOUT 32 YEARS,
PRESENTLY R/AT MIRCHANDANI PALMS,
A-6, 103, PIMPLE SAUDAGAR,
RAHTANI, PUNE-411027.
... APPELLANT
(BY SRI K.SRINIVASA, ADVOCATE)
AND :
AMITH PRAKASH,
S/O L. PRAKASH,
AGED ABOUT 34 YEARS,
R/AT NO. 2068,
16TH "D" MAIN ROAD,
HAL 2ND STAGE,
BANGALORE-560008. ... RESPONDENT
(BY SRI PRAKASH.L, ADVOCATE
FOR M/S.DIWAKAR ASSOCIATES)
2
THIS MFA FILED U/S 19(1) OF FAMILY COURTS ACT,
AGAINST THE JUDGMENT AND DECREE
DATED:02.12.2013 PASSED IN MISC.NO.86/2011 ON THE
FILE OF THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY
COURT, BANGALORE, DISMISSING THE PETITION FILED
U/O 9 RULE 13 OF CPC, R/W SEC.7 OF FAMILY COURTS
ACT, TO SET ASIDE THE JUDGMENT AND DECREE
DT.15.04.2011 IN M.C.NO.2090/2010.
THIS MFA COMING ON FOR HEARING, HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT, THIS
DAY, S.N.SATYANARAYANA J., PRONOUNCED THE
FOLLOWING:
JUDGMENT
The respondent in MC.No.2090/2010 on the file of V Additional Principal Judge, Family court, Bangalore, has come up in this appeal impugning the order dated 2.12.2013 passed in Misc.No.86/2011.
2. Brief facts leading to this appeal are as under; The appellant and respondent herein were wife and husband, their marriage was solemnized on 10.2.2007 at Bangalore. In the wedlock, appellant has given birth to a male child by name Nishkrith Amith on 29.2.2008. 3 Thereafter, due to difference of opinion between them they were living separately. The appellant-wife issued legal notice on 20.7.2009, which was duly replied by respondent- husband on 24.8.2009. It was followed by another legal notice dated 18.8.2009 and also a letter dated 9.10.2009 and reply dated 10.11.2009. It is seen that the aforesaid correspondence in the form of issue of legal notice, reply and personal letters did not bring them together. Thereafter, the respondent filed a petition seeking decree of divorce on the ground of cruelty and desertion and also on the ground that the appellant-wife is suffering from incurable unsound mind. The said petition is in MC.No.2090/2010.
3. In the said proceedings, summons was sent to appellant to her residence as well as office address. The notice sent to her has come back with an endorsement 'not claimed'. Admittedly, the address of the appellant as shown in MC.No.2090/2010 is house No.31/1, H.B.Colony, Pimpri, Pune-411 017 and that of the office is, Chandiramani Associates, Advocates, Plot No.88, Tilak Road, Pimpri, Pune 4 411 107. Thereafter, it is stated that an application was filed by the petitioner in said MC proceedings seeking service of notice through substituted service, which was not considered. However, the service of notice on wife, respondent in said proceedings is held sufficient and she is placed ex parte. Thereafter, evidence was recorded and judgment and decree of divorce was passed on 15.4.2011.
4. The ex parte judgment and decree passed in MC.No.2090/2010 was under challenge by the appellant herein in Misc.No.86/2011 on the file of Principal Family Judge, Family Court, Bangalore, on the ground that the proceedings in MC.No.2090/2010 was filed alleging false grounds and suppressing the material facts of two proceedings pending in the Courts at Pune in CMA.No.736/2010 filed under Sections 12, 18, 19 and 23 of the Protection of Women from Domestic Violence Act, 2005 before JMFC, Pimpri as well as the proceedings in MP.No.1867/2010 filed under Section 18 of the Hindu Adoption and Maintenance Act, 1956, before the Civil Judge, 5 Senior Division, Pune, where the respondent-husband is said to be duly served and is contesting the said proceedings.
5. It is also stated in aforesaid miscellaneous proceedings that the address of appellant-wife was erroneously shown in MC proceedings and her correct address where she was residing was at J.M.Classic, C-Wing, Flat No.30, Pimpri, Wagheri, Pune-17. It is further stated that she was residing in said apartment from 2000 till her marriage. Thereafter, from third week of June 2010 to till second week of July 2010 and from 15.7.2010 to till date of filing the miscellaneous petition she was residing in the address at Mirchandani Palms, A-6, 103, Pimple Saudagar, Rahtani, Pune 411027. That at the time of alleged service of notice to her through postal department at Pune she was not residing in the said address, that her husband has deliberately given said address in MC proceedings to ensure that he could secure ex-parte decree. In that behalf, he has played fraud in getting the ex parte decree from the court 6 below. Therefore, the same is required to be set aside. It is seen that besides the aforesaid grounds, several statements were made which are alleged to be facts pertaining to the dispute between herself and her husband.
6. In the said miscellaneous proceedings, it is seen that evidence was duly recorded and thereafter, the court below has dismissed the miscellaneous petition for the reason that petitioner therein has not made out sufficient ground to set aside the ex parte judgment and decree passed in MC.No.2090/2010 on 15.4.2011. Being aggrieved by the same, the appellant has come up in this appeal.
7. Heard the learned counsel appearing for the appellant-wife as well as respondent-husband. Perused the grounds urged in Misc. No.86/2011, the judgment and decree passed in MC.No.2090/2010 and the judgment and decree passed in Misc.No.86/2011. After giving careful consideration to the material on record, we find that the following point arises for consideration in this proceedings; 7
Whether the court below was justified in holding that the return of notice in MC.No.2090/2010 on the ground of 'not claimed' is sufficient service as contemplated under Order 5 Rule 9(3) of CPC ?
8. Admittedly, the marriage between appellant and respondent had broken down much prior to filing of MC.No.2090/2010 and the appellant along with her minor child was residing at Pune. It is not in dispute that there were several correspondences in the form of legal notice and letters between the parties and the address to which such correspondences are, as stated in the cause title to MC.No.2090/2010. It is further seen that the address mentioned in the proceedings initiated by appellant-wife in CMA.No.736/2010 as well as MP.No.1867/2010, which is subsequently renumbered as Special CS.No.1867/2010 is not the address mentioned in Misc.Petition No.86/2011. As could be seen the address stated in CMA.No.736/2010 is, No.HB.31/1, Near Durga Mata Mandir, Pimpri, Pune-17. Further, in the evidence which is adduced by her, she has 8 stated that the house bearing No.31/1 is the house belonging to her uncle, where she would be going once in a week to collect the posts, which are addressed to her. That at no point of time, she had furnished the present address to the respondent-husband, which is at No.A-6, 103, Pimple Saudagar, Rahtani, Pune 411 027. In that view of the matter, her contention that she was not residing in the address shown in the proceedings, which is stated to be her uncle's house and that address was known to the respondent-husband, at the relevant point of time when notice was ordered to her in MC.No.2090/2010, would not give any credence to the ground urged by her.
9. In fact, the learned counsel for the respondent- husband would try to substantiate that the appellant was aware of the proceedings in MC.No.2090/2010 and she has deliberately stayed away from the proceedings. However, at the same time, he does not give any acceptable reason as to why he did not choose to place on record in CMA.736/2010 on the file of JMFC, Pimpri and M.P.No.1867/2010 which 9 was pending on the file of Civil Judge, Senior Division, Pune, with reference to proceedings initiated by him in MC.No.2090/2010 at Bangalore.
10. The contention of respondent-husband that non claiming of notice which is sent through registered post could be held as sufficient service of notice, cannot be accepted for the reason that, the normal procedure of the postal department would be to deliver the registered article to the address mentioned in the registered post in giving them clear seven days to collect the article from the nearest post office from which they have received the intimation. If for any reason, the party do not come and collect the material, it is returned with an endorsement 'unclaimed'. If that practice is accepted, in the instant case, it is seen there is no proof of the intimation being properly delivered to the address referred to in the letter or article, which is sent through registered post. Therefore, when that itself is not established by adducing the evidence of postman, coming to the conclusion that the said intimation is duly served on 10 appellant and non collection of the article by appellant amounts to not claiming the same, does not arise.
11. In fact, to get over such a situation, there are other provisions provided in the Civil Procedure Code under Order 5, wherein under Rule 17 there is an option to the plaintiff/petitioner/appellant to serve notice viz., if the notice is not received by the addressee, a copy of the same would be pasted on a conspicuous place of the address mentioned in the instrument and the report thereof would be filed in to the Court with an endorsement by the concerned postal officer, which can be considered as due service of notice. In the alternative, there is also another procedure as contemplated under Order 5 Rule 20 of CPC, where notice can be issued through paper publication publishing the notice to the recipient by giving full particulars of the case.
12. In the instant case, if the service to respondent in MC.No.2090/2010 were to be in any of the aforesaid alternate mode, the same could have been accepted. However, the said exercise not being carried on, it is difficult 11 to accept that there was an attempt to serve notice by the postal department and the same is not claimed by the addressee, the appellant herein. In that view of the matter, the court will have to consider that the service of notice is not complete.
13. However, in the peculiar facts and circumstances of the present case, based on said postal shara the notice is held sufficient by the family Court and thereafter, the matter is proceeded with on merits and decree of divorce is granted. Thereafter, the respondent herein who is petitioner in MC.No.2090/2010 has entered into a marriage afresh with another person. Since the said marriage has taken place subsequent to the period required for filing of the appeal, the same cannot be either considered or declared as void or illegal marriage.
14. In the instant case, if this Court while accepting notice as not served take recourse to set aside the exparte judgment and decree dated 15.4.2011 passed in MC.No.2090/2010 it would lead to a situation where a 12 legitimately convened marriage of the respondent-husband with third party would automatically become a marriage in nullity, which cannot be considered in the facts and circumstances.
15. However, considering the fact that the interest of minor child is involved and also the fact that the court below has not considered the right of appellant - wife to seek permanent alimony, if she is entitled to seek maintenance for herself and maintenance to the minor child, who is in her custody being required to be decided in the said proceedings, the proceedings in MC.No.2090/2010 is required to be restored to file for the limited purpose of deciding the permanent alimony, if any, the appellant-wife is entitled to receive and also the maintenance to minor child born in the wedlock to the appellant and respondent herein. Therefore, without disturbing the judgment and decree of divorce passed in MC.No.2090/2010, the proceedings in MC.No.2090/2010 is required to be restored to file to 13 consider the aforesaid relief to the appellant-wife and her minor son.
16. Accordingly, the order dated 2.12.2013 passed in Misc.No.86/2011 is modified and the judgment and decree dated 15.4.2011 passed in MC.No.2090/2010 is set aside so far as it pertains to the right of appellant herein and respondent in said MC proceedings to contest the same with reference to permanent alimony payable to herself and the maintenance payable to her minor son - Nishkrith Amith.
With the aforesaid observations, this appeal is allowed in part. No order as to cost.
Sd/-
JUDGE Sd/-
JUDGE nd/