Gayatri Mandola vs Dinesh Chandra Mandola

Ramesh Chandra Khulbe, J

This appeal is directed under Section 19 of the Family Courts Act, 1984 against the judgment and order dated 23.05.2019 rendered by learned Principal Judge, Family Court, Dehradun in Misc. Case No.46 of 2018 (Dinesh Chandra Mandola v. Smt. Gayatri Mandola), whereby the said Court has allowed the application moved by the respondent-Dinesh Chandra Mandola under Order 9 Rule 13 r/w Section 151 of the Code of Civil Procedure (C.P.C.).

The factual matrix of the case is that the present appellant filed the Divorce Suit No.951 of 2016 against the respondent before the Court below. In that suit, the respondent did not put his appearance before the Court. Therefore, the suit was directed to be proceeded ex parte by order dated 20.05.2017. Vide ex parte judgment dated 17.07.2017, the divorce petition was allowed on the basis of the evidence produced by the appellant, and thereby, the marriage, solemnized between the parties, was dissolved from the date of decree of divorce.

Thereafter, the respondent-husband Dinesh Chandra Mandola moved an application under the provisions of Order 9 Rule 13 r/w Section 151 of the C.P.C., which was registered as Miscellaneous Case No.46 of 2016. After hearing both the parties, learned Principal Judge, Family Court, Dehradun, vide judgment dated 23.05.2019, allowed the application moved by the respondent-husband, quashed the ex parte judgment and decree dated 17.07.2017, and restored the suit to its original number. Being aggrieved by the said judgment dated 23.05.2019, the appellant-wife has knocked the doors of this Court.

We have heard learned Counsel for the appellant and perused the papers available in the file of the Court.

It was argued that the appellant-wife filed the petition under Section 13 of the Hindu Marriage Act, wherein, the notices were issued to the respondent, but when the same could not be sufficiently served, the appellant moved an application before the Court below for effectuation of service by way of publication. Even after publication of notice, the respondent did not put his appearance. Ultimately, the suit was directed to be proceeded ex parte, and, on the basis of the evidence adduced by the appellant, the Court below, ex parte, decided the suit, and dissolved the marriage, solemnized between the parties on 12.05.1987, from the date of judgment.

On a perusal of the impugned judgment dated 23.5.2019, it is evident that the respondent -husband is serving in Uttarakhand Forest Development Corporation, Pauri, District Pauri Garhwal and stays there only, and he does not reside at Kotdwar, as mentioned in the notice. Moreover, none of his family members reside at Kotdwar since his elder sister is at her in-laws house, the second daughter is pursuing studies at China, whereas the son is pursuing M.B.A. from Petroleum University at Dehradun. This fact was also well within the knowledge of the appellant but even then she mentioned the address of Kotdwar.

From the evidence of respondent, it is clear that in the month of December, 2016, the respondent was serving at Pauri and was not residing at Kotdwar. The appellant had mentioned the incorrect address of the respondent to avoid the service on him and for this reason, the service of notice could not be effected upon him.

The Court below also recorded a finding in the impugned judgment that the appellant-wife, in her petition, had mentioned the incorrect address of her husband, since at the relevant point of time, he was serving and staying at Pauri Garhwal. On the basis of the evidence available in the file, it is evident that the respondent was doing his service at Pauri.

Moreover, the Court below found that on 5.12.2016, the respondent-husband was not living at Kotdwar, since, on that day, he was on his duty at Pauri. The Court also recorded a finding of fact that the notices were not personally served upon the appellant. Thus, on the basis of publication, the suit was ex parte decreed.

At this stage, Section 10(1) of the Family Courts Act, 1984 needs to be mentioned, which provides that: -

(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court.

From a perusal of the above-quoted section, it is clear that the provisions of the Code of Civil Procedure are applicable in relation to the suits and proceedings pending before the Family Court.

Moreover, Order V of the Code of Civil Procedure deals with the issue and service of summons. What is relevant here is the 'substituted service' as provided Order V Rule 20, which is extracted hereinunder -

"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) ......................

(3) ......................"

In the present case also, the summons were issued by the Family Court but the same could not be personally served on the respondent as he was staying at a place different from that mentioned in the notice. Moreover, there is no evidence, available in the file, to believe that the respondent was intentionally avoiding the service of summons on him.

The Court below rightly came to the conclusion that the summons were not sufficiently served upon the respondent-husband. We have also reached to the conclusion that for the fault on the part of the appellant, the suit was directed to be proceeded ex parte against the respondent. When this fact came to the notice, the Court below rightly allowed the application moved by the respondent-husband and also rightly restored the suit to its original number under Order 9 Rule 13 C.P.C.

We find no illegality or irregularity in the judgment, under challenge. The appeal lacks merit and is liable to be dismissed in limine.

The appeal is, accordingly, dismissed. No costs.