Bindu Gahlot vs For the Appellant

Judgment

The instant appeal has been preferred against the judgment and decree dated 20.06.2018 and

03.07.2018, respectively, passed in Title Matrimonial Suit

No.172 of 2014; whereby the suit of the plaintiff/appellant under Section 13(1A)(ii)of Hindu Marriage Act has been dismissed.

2. Brief fact of the case is that the marriage between the parties was solemnized on 15.07.2003 at Akhtiyarpur, Gaya (Bihar) as per the Hindu rites and customs but there was no cohabitation between the parties since the date of solemnization of the marriage till date, as such there was no issue born out of the wedlock. It has been alleged that defendant/respondent, without any reasonable excuse withdrew from the society of the plaintiff/appellant, hence, a suit for restitution of conjugal rights had been preferred vide T.M.S No.41 of 2017, before the Principal Judge, Family Court, Dhanbad and the same was decreed ex-parte in favour of the plaintiff/appellant. It has further been alleged that even after obtaining the decree of restitution of conjugal rights, the appellant had made several requests to the defendant-respondent to join the appellant and also sent copy of the said judgment and decree but as usual the defendant-respondent failed and neglected to join her husband. 2 Defendant-Wife appeared in MTS No.172/2014 and filed her written statement wherein she preliminary objected that the suit was not maintainable, barred by limitation and misuse of process of law. It has further been stated that the suit is ill framed under Order 2 Rule 2 of C.P.C and is liable to be dismissed under Order 7 Rule 11 of C.P.C. It has further been stated that defendant is legally married wife of the plaintiff whose marriage was solemnized on 15.07.2003 and at the time of marriage upon demand of the plaintiff her father has given cash of Rs.4.00 lakh, one motorcycle, utensils worth Rs.45,000/-, furniture, almirah and other household articles worth Rs.1.00 lakh to the plaintiff-husband but after one month this appellant and family members started torturing the defendant- respondent.

3. The learned Family Court framed the following issues which are as follows: - (i) Whether the suit is maintainable in its present form ? (ii) Whether the plaintiff has got valid cause of action for the suit ? (iii) Whether the marriage of parties is liable to be dissolved owing to non compliance of judgment and decree passed in TMS No.41 of 2007 by the defendant ? (iv) Whether plaintiff is entitled for the relief claimed ?

4. Learned counsel for the appellant submits that the impugned judgment is bad in law, inasmuch as, the learned Family Court has failed to appreciate the very Section 13(1A)(ii) of the Hindu Marriage Act, inasmuch as, even after the decree passed in restitution application, the respondent-wife did not go with the husband and the learned Family Court has wrongly appreciated that she was having no knowledge of the decree in spite of the fact that the TMS No.41/07 which was filed for restitution of conjugal right, notices were issued through Nazarat, speed 3 post and even a paper publication was made for appearance of defendant-wife. But for the reason best known to the respondent-wife she never appeared. He further submits that the learned Family Court misdirected itself in holding that plaintiff-Husband had not filed any service /execution report to prove the fact that the notice was duly served upon the defendant about the pendency of TMS No.41/2007 nor had stated anything in evidence that he had informed the same to the defendant personally or through other person. Thus, on this ground alone the impugned judgment should be set aside and the decree for divorce may be granted in favour of the appellant.

5. Nobody appears on behalf of the defendant- respondent and from the supplementary affidavit dated

14.10.2022, it appears that paper publication of notice in Hindi daily newspaper “Dainik Bhaskar” showing service of notice upon the respondent in terms of the order dated

13.10.2022 and 16.08.2022, has been done. Only after paper publication, service of notice upon the respondent has been treated as valid. It further transpires from the record that the Secretary DLSA, Bokaro has submitted a report indicating therein that respondent could not be located as on enquiries made through P.L.V on two visits, neither any information nor mobile number of the respondent could be obtained from her neighbours. Thus, the instant appeal proceeded ex-parte.

6. So far as issue no.3 is concerned as framed by the learned Family Court is concerned; Section 13(1-A)(ii) of “The Hindu Marriage Act, 1955” (hereinafter to be referred as the Act) is quoted hereinbelow:- “13(1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, 4 may also present a petition for dissolution of marriage by a decree of divorce on the ground --- (i) ……….. (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of (one year) or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.” From record, it appears that the appellant filed a suit for restitution of conjugal right under Section 9 of the Act bearing TMS No.41 of 2007 against which notice through Nazarat and Speed Post were sent to the defendant-wife and publication of notice was also made through newspapers for appearance of the wife but she did not appear before the Court, hence an ex-parte judgment and decree was passed in favour of the plaintiff/appellant.

7. Admittedly, the application filed u/s 13(1-A)(ii) of the Act has been filed after one year from the date of decree passed in TMS No.41/2007 i.e., the case filed by the appellant for restitution of conjugal right u/s 9 of the Act, and the same was allowed in his favour. Thus, precisely the suit for divorce filed u/s13(1-A)(ii) of the Act should have been allowed in favour of the appellant; however, the learned Family Court has decided this issue against the appellant in page No.12 of its judgment; relevant portion is quoted hereinbelow:- “ ………..Defendant stated in para-39 of her evidence that she had no knowledge about pendency of TMS No.41/2007 U/s 9 of the Hindu Marriage Act filed by plaintiff against her and the same came to her knowledge in the year 2014 when defendant had filed certified copy of the judgment of the said suit against the maintenance filed by her against her husband/defendant. Plaintiff had neither filed any Service/Execution Report to prove the fact that notice4 was duly served upon pendency of TMS No.41/2007 nor had stated anything in his evidence that he had informed the same to the the defendant about 5 defendant personally or through other persons whereas he has stated in his evidence that he had visited the Maika of defendant in the month of August 2003, December 2003, January 2004 and several other occasions for getting her Bidai which show that has not come with clean hand because on the one hand he had filed the suit for restitution of conjugal right and on the other hand he had informed the matter to the defendant in spite of his several visits to the Maika of defendant and plaintiff had filed TMS No.41/2007 U/s 9 of the Hindu Marriage Act for restitution of conjugal right only with a view to get the benefit of filing suit u/S 13(1A)(ii) of the Hindu Marriage Act for dissolution of marriage. So, plaintiff cannot be allowed to be benefited for his wrong and it debarred the plaintiff from taking the relief. Therefore, I am of view that the plaintiff has failed to prove that the defendant is not only complying the judgment and decree passed in T.M.S. No.14/2007 hence, I find and hold that this issue is hereby decided against plaintiff………….”

8. After going through the aforesaid portion of the judgment, it appears that the learned Family Court misdirected itself in holding that the plaintiff-appellant had neither filed any service /execution report to prove the fact that notice was duly served upon the defendant about the pendency of TMS No.41 of 2007 in spite of the fact that there is a specific averment of the plaintiff in paragraph 4, 5 and 6 of his affidavit/deposition that on 02.02.2007 appellant had filed an application under Section 9 of the Hindu Marriage Act which was numbered as TMS 41/07 and notice through Nazarat and Speed Post were sent to the defendant and paper publication of notice was also made for appearance of the defendant but she did not appear before the court and only then an ex-parte judgment and decree was passed in his favour. Learned Family Court in the instant case has failed to appreciate that without any service of notice, though by way of substituted service of summon; the case cannot proceed and admittedly; in the restitution case which was numbered as TMS No.41/07, paper publication was made 6 and finally the case was proceeded ex-parte and ex-parte judgment and decree was passed favour of the plaintiff/appellant. Thus, the learned Family Court has committed a gross error in ignoring this vital fact and thus the impugned judgment and decree requires interference in view of the fact that the instant application under Section 13(1A)(ii) has been filed much after one year of ex-parte judgment and the learned Family Court has committed an error in ignoring the said fact.

9. Having regard to the discussions made herein above, the impugned judgment and decree dated 20.06.2018 and

03.07.2018 respectively, is hereby, quashed and set aside. We hold that the relationship between husband and wife, is hereby, terminated and marriage between them, is hereby, dissolved.

10. As a result, this appeal stands allowed. (Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) Fahim/