High Court
Legal Reasoning
6FCA_104_2023_Jdbefore the learned trial Judge to come to a conclusion that the wife wasavoiding to receive the notice/summons. The order of proceeding the matterex parte is, therefore, erroneous. He failed to consider that the lady waspardanashin and, therefore, ought to have taken precautions to see whetherexactly where she was residing and there should have been a proper service. 9Another fact to be noted is that it appears that the learned trialJudge has not considered the Division Bench decision of this Court in DagduChhotu Pathan vs. Rahimbee Dagdu Pathan [2002 (3) Mh.L.J. 602] to seethat there are efforts of reconciliation before accepting the plea of talaaq. 10We feel that no proper opportunity was given to the appellant tocontest the matter and, therefore, it deserves to be remanded. Hence, thefollowing order. ORDER1The appeal stands partly allowed. 2The Judgment and Decree passed by the learned Judge, FamilyCourt, Parbhani in Petition – A No.52/2023 dated 12.10.2023 is hereby setaside. 7FCA_104_2023_Jd3The petition is restored on the File of learned Judge, FamilyCourt, Parbhani. 4The appellant should appear before the learned trial Judge on01.02.2024. In case of failure on the part of appellant to appear, learned trialJudge to issue notice to her and on her appearance give opportunity to her tofile written statement as per the provisions of law and thereafter to decidethe matter as per the procedure of law. 5The learned trial Judge to expedite the proceedings andcomplete the proceedings and decide it within six months from today. 6Civil Application stands disposed of. ( S.G. CHAPALGAONKAR, J. )( SMT. VIBHA KANKANWADI, J. )agd
Arguments
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD939 FAMILY COURT APPEAL NO.104 OF 2023WITHCIVIL APPLICATION NO.14521 OF 2023IN FCA/104/2023Bibi Sadiya Mohammad Raju @ Mohd. Javed Deshmukh,Age 28 yrs., Occ. Household,R/o Opposite Swaraj Tractor, Jalgaon Road, Near Bharat Gas,Sillod, Tq. Sillod, Dist. Aurangabad. … Appellant… Versus …Raju @ Mohammad Javed s/o Hamidmiya Deshmukh,Age 36 yrs., Occ. Service,R/o Wadhone, Tq. Sengaon,Dist. Hingoli. At present Kazi Bag, Darga road,Parbhani, Tq. & Dist. Parbhani. … Respondent...Mr. Shaikh Mohammad Naseer, Advocate for appellantMrs. A.N. Ansari, Advocate for sole respondent...CORAM :SMT. VIBHA KANKANWADI &S.G. CHAPALGAONKAR, JJ.DATE:11th JANUARY, 2024 2FCA_104_2023_JdJUDGMENT :(PER : SMT. VIBHA KANKANWADI, J.)1Present appeal has been filed by the wife to challenge the exparte Judgment and Decree of divorce passed by learned Judge, FamilyCourt, Parbhani in Petition – A No.52/2023 on 12.10.2023. The said petitionwas filed under Section 2 of Muslim Personal Law (Shariat) Application Act,1937 read with Section 7 of the Family Courts Act. 2The original petition was filed by the present respondent –husband. The marriage between the original petitioner and respondent wassolemnized on 26.04.2018 at Sillod, Dist. Aurangabad. After marriage theyresided at Wadhone, Tq. Sengaon. Their son is aged 3 now. 3The husband is coming with a case that the wife is shorttempered, arrogant and behaving in rude manner. On many occasions shehad denied the sexual pleasure and when he asked her, she told that she doesnot like him. She was not willing to perform marriage with him. Sheinsisted that the husband should reside separately from parents, otherwiseshe would commit suicide. She was also suspecting his character and sheused to stay with her parents for long time. Whenever he used to go to fetchher, she used to insult and abuse him. The wife had picked up quarrels on26.12.2021 when his parents had come to meet the grandson in their house 3FCA_104_2023_Jdat Risod. According to the husband, the wife has left the house on27.12.2021 on her own by taking all valuables, cash of Rs.2,00,000/- and theson. He had attempted to bring her back for cohabitation, however, sherefused. The divorce has been sought on the ground of cruelty and desertion.4It appears from the record and the impugned Judgment thatnotice was served but it was observed by the trial Court that even after dueservice she failed to appear and, therefore, matter proceeded ex parte.Taking into consideration the evidence that was led by the husband, theimpugned Judgment has been pronounced and the decree has been drawn. 5Since copy of the entire record has been produced, the matterhas been taken up for final hearing at the stage of admission with consent ofboth the parties. 6Heard learned Advocate Mr. Shaikh Mohammad Naseer for theappellant and learned Advocate Mrs. A.N. Ansari for the respondent. Inorder to cut short, it can be said that both the learned Advocates havesubmitted their submissions in support of their respective contentions. 7Taking into consideration the rival contentions following pointsarise for determination, findings and reasons for the same are as follows. 4FCA_104_2023_JdSr. Nos.POINTSFINDINGS01Whether the decision of the trial Court toproceed the matter ex parte was legal ?No.02Whether interference is required ?Yes. By partly allowing the appeal, the matter is remanded. REASONS8The photocopy of certified copy of the service report has beenproduced. It appears that the Bailiff of Sillod Court had gone to effect serviceof summons on the respondent. He has stated in the report that when hewent to the house as shown by the witness, he knocked the door of the houseand called the name of the wife, but nobody appeared and, therefore, hepasted the copy of the summons on the conspicuous part of the door of thehouse. According to us, this is totally illegal service of summons. The firstand the foremost fact ought to have been borne in mind by the Bailiff is thatthe lady on whom he was asked to serve the notice was a pardanashin ladyand, therefore, all the precautions ought to have been taken. Further, itappears that he knocked the door and nobody came. Unless order V Rule 16of the Code of Civil Procedure requires that the serving officer should tender 5FCA_104_2023_Jda copy of the summons to the defendant personally, or to an agent and thenshould take the acknowledgment i.e. the signature or the thumb mark inacknowledgment of receipt of the summons, then Order V Rule 17 of theCode of Civil Procedure prescribes for the procedure when defendant refusedto accept the service or cannot be found. In respect of the defendant who isnot found at the time the serving officer goes, then the second part of theOrder V Rule 17 of the Code of Civil Procedure would come into play. Onlywhen the defendant who is absent from his residence and there is nolikelihood of his being found at the residence within a reasonable time, thenonly the serving officer is supposed to affix a copy of the summons on theouter door. The copy of the roznama would show that the learned trial Judgehas acted hastily and even when the summons/notice had not received; yetallowed application Exh.15, which was for affixing the notice on theconspicuous part of the door of the respondent. He failed to consider thatOrder V Rule 20 of the Code of Civil Procedure which provides for thesubstituted service would come into play only when the Court is satisfied thatthere is reason to believe that the defendant is keeping out of the way for thepurpose of avoiding service, or that, for any other reason the summonscannot be served in ordinary way, then affixing the copy of the same can beallowed. Here, the roznama absolutely does not show that notice which wassent for serving on the wife had ever returned and there was any evidence