JUDGMENT : A.S. BELLUNKE, J. 1. Miscellaneous First Appeal No.102839 of 2015 is filed by the wife against the judgment and decree dated 28.01.2014 passed by the Principal Judge, Family Court, Bellary, passed in MC No.318 of 2013. Miscellaneous First Appeal No.101732 of 2017 is also preferred by the wife against the order dated 10.07.2015 passed by the Principal Judge, Family Court, Ballari, in Civil Misc. Case No.7 of 2014. Since the subject matter involved in both the appeals are interconnected with other in order to avoid repetition of facts and issues involved, both the cases are taken up together and dispose of by this common judgment. 2. Brief facts of the case are as under: The appellant and respondent are wife and the husband. The respondent-husband had filed the divorce petition before Family Court, Ballary, in M.C.No.318/2013 under Section 13(1)(ib) of Hindu Marriage Act on the ground that the appellant-wife had voluntarily deserted her husband for a period of more than two years without any lawful excuse. All efforts made by the husband to get back his wife did not yield any result. The wife was acting to the words of her parents. She had left matrimonial house without any information. 3. Further, alleged that, she had filed a false complaint against the husband and his family members in S.C.No.82/2006. Subsequently, the respondent and his family members acquitted. Hence, on these grounds, he has been filed the petition for divorce. 4. The trial Court issued notice to the respondent-wife. In spite of service of notice, she did not appear before the Court. Therefore, she was placed exparte. The trial Court recorded the evidence of petitioner PW1 and the witnesses as PW2 and 3. Documents got marked at Ex.P1 to 5. After hearing the petitioners the Family Court Judge passed the impugned order allowing the divorce petition filed under Section 13(1)(ib) of the Hindu Marriage Act. Consequently, the marriage dated 08.08.2003 between the respondent-petitioner and the appellant-wife came to be dissolved by decree of divorce. 5. The appellant-wife had filed a miscellaneous case before the trial Court in Civil Misc.No.7/2014 under Order IX Rule 13 of CPC r/w Section 21 of Hindu Marriage Act, to set aside exparte judgment and decree passed in Mat.Case No.318/2013. 6. The bone of contention of appellant-wife is that she was not served a notice in the petition for divorce. 5. The appellant-wife had filed a miscellaneous case before the trial Court in Civil Misc.No.7/2014 under Order IX Rule 13 of CPC r/w Section 21 of Hindu Marriage Act, to set aside exparte judgment and decree passed in Mat.Case No.318/2013. 6. The bone of contention of appellant-wife is that she was not served a notice in the petition for divorce. The contention of the husband was that notice was served on the appellant-wife through RPAD. She had refused to receive the notice. Therefore, the service of notice on appellant-wife was held proper by the Family Court. Consequently, the decree came to be passed against the appellant-wife. 7. The learned Judge held the trial of the Misc. case in No.7/2014 and found that there are no sufficient grounds to set aside the judgment and decree passed in the divorce petition in Mat.Case No.318/2013. Consequently, petition came to be dismissed. Therefore, the above two appeals came to be filed challenging the impugned orders on following grounds: 1. The impugned order allowing the petition filed by the respondent-husband is contrary to law and facts of the case, the reasoning given by the family court for allowing the respondent's petition is based only on contention of the respondent-husband. 2. Family court erred in not verifying whether the notice is served to the appellant in Mat.C.No.318/2013, properly or not? 3. The appellant-wife did not receive any notice either through court or through registered post about filing of Mat.C.No.318/2013 by the respondent. No process server or the Postman approached her to serve any such notices. 4. The appellant after verification came to know that the concerned postman has returned the registered notice with shara as "party refused" the date of refusal is not mentioned in the postal cover. The concerned postman did not kept postal cover for seven days as contemplated under postal rules and has violated the procedural aspects. It is crystal clear that the postman and the respondent have colluded and managed to get the order from the Court. 5. The family court has failed to notice that, the respondent-husband and his family members just to want to harass the appellant and to seek divorce by making false and frivolous allegations, though the same have not been proved by the respondent herein. The family court has come to the conclusion that the appellant herein has voluntarily deserted him. 6. 5. The family court has failed to notice that, the respondent-husband and his family members just to want to harass the appellant and to seek divorce by making false and frivolous allegations, though the same have not been proved by the respondent herein. The family court has come to the conclusion that the appellant herein has voluntarily deserted him. 6. The impugned order dismissing the Civil Misc.Case No.7/2014 filed by the appellant is contrary to law and facts of the case, the reasoning given by the family Court for dismissing the petition is based on contention of the respondent herein. 8. Therefore, on the above grounds, the appellant-wife prayed to allow the appeals. 9. We have heard the arguments advanced by the learned counsel for the appellant Sri. B.S. Sangati in both the cases as well as the counsel for the respondent Sri. Ravi S. Hegde. 10. On the basis of above said facts and arguments the following points would arise for determination of this Court. 1. Whether there was proper service of summons on the appellant-wife in Misc.Case No.318/2013? 2. Whether the appellant-wife proves that the exparte judgment passed by the trial Court is contrary to law and facts and evidence on record? 3. What order ? 11. At the very outset, we would like to point that the marriage among Hindus is a sacred relationship created between man and women. According to mythology it runs for seven rebirths. Grant of divorce is only an exception as against refusal of divorce. The Court before granting divorce should make all efforts to bring reconciliation between the husband and wife and to see that they lead happy life. If divorce decrees are to be granted exparte, as it is done in this case, we find that the very institution of marriage would be in danger. 12. On perusal of the trial Court order sheet in M.C. No.318/2013 the first order was passed as "issue Notice to respondent through court and by RPAD" and process returnable by 03.01.2014. On 03.01.2014 it was ordered that the notice sent through RPAD returned with shara as "refused". The service held sufficient as the respondent did not appear till 4.00p.m. Therefore, respondent was placed exparte. The trial Court was not bother to see what happened to notice issued through Court. It has also not verified whether the notice was really sent through court or not? The service held sufficient as the respondent did not appear till 4.00p.m. Therefore, respondent was placed exparte. The trial Court was not bother to see what happened to notice issued through Court. It has also not verified whether the notice was really sent through court or not? Immediately the matter was posted for enquiry on 10.01.2014. On that day, the evidence of petitioner was recorded. On 23.01.2014 the witnesses were examined. The Evidence was closed. The matter was heard and posted for judgment and the judgment was pronounced on 28.01.2014. 13. Having regard to the aforesaid dates, of proceedings, we find that the learned Judge hurriedly disposed of the matter. The learned Judge blindly accepted the postman report without examining him. Therefore, virtually it is an exparte decree. Even though the respondent placed as exparte the learned Judge duty bound to satisfy himself that the petitioner has proved the ingredients of Section 13(1)(ib) of Hindu Marriage Act so as to grant decree of divorce. Merely because, the respondent remained absent and placed exparte, the Court would not get jurisdiction to pass the order as prayed for. Therefore, on perusal of the reasons assigned by the trial Court in the impugned judgment, we find that it is nothing but repetition of what the respondent-husband says. The only reason for the learned Judge to grant decree of divorce is that the evidence on record has not been challenged and there is no rebuttal evidence. We also find that the returned postal cover through which the notice of the petitioner was sent the cover was not opened. It is accompanied by RPAD card also. Looking at the postal cover, we find it does not contain the petition copy at all. Therefore, even assuming for the sake of argument that the postal notice sent to the respondent-wife was refused by her yet it cannot be held to be proper service. Because, it did not contain the copy of the petition. It appears it contains only the summons copy and nothing. There is no material on record to show that the postman waited for seven days before returning the postal cover. Notice appears to be on 26.12.2013 and it has received back to the Court on 30.12.2013. Because, it did not contain the copy of the petition. It appears it contains only the summons copy and nothing. There is no material on record to show that the postman waited for seven days before returning the postal cover. Notice appears to be on 26.12.2013 and it has received back to the Court on 30.12.2013. In the absence of service of notice particularly service through court, the trial Court should not have come to the conclusion that the respondent deserted her husband voluntarily for more than 8 years. The trial Court has considered the filing of criminal case attempt to murder by the respondent -wife on her husband and others in S.C. No.82/2006 and their acquittal. Filing of attempt to murder and its acquittal, would not be a ground to grant a decree for divorce. In fact, attempting to murder the wife and the wife giving complaint and registering the criminal case would show that she might have given justifiable reasons for living separately. The judgment given in criminal case is not binding the civil court. There the strict proof beyond any reasonable doubt is insisted. Whereas, civil case is decided on the basis of preponderance of probabilities. Therefore, both on the ground of non service of notice properly on the respondent-wife and even the judgment and decree passed in Mat.C. No.318/2013 is neither sustainable in law or facts evidence on record. 14. As regards, the appeal No.101732/2017 is concerned, though in the said case, the court held that there are no sufficient grounds to set aside exparte judgment and decree in M.C.no.318/2013 on the ground that service of notice on the respondent-wife was proved by the evidence of postman etc., But, the same is not sustainable in law. Because, in the original case itself it is found that the postal cover did not carry any copy of divorce petition filed under Section 13(1)(ib) of Hindu Marriage Act. 15. How summon is to be served is governed by Order 5 of CPC 1908 (1). The same reads as under: 7. Because, in the original case itself it is found that the postal cover did not carry any copy of divorce petition filed under Section 13(1)(ib) of Hindu Marriage Act. 15. How summon is to be served is governed by Order 5 of CPC 1908 (1). The same reads as under: 7. Summons.- (1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant: Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff's claim: Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other days as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. 16. As already noted under the postal cover, which is returned within a short span of time, the learned Judge has not waited for 30 days and has proceeded to record the exparte evidence. It is specifically required by Order 5 sub rule (2) of CPC that a every summons shall be accompanied with a copy of plaint. Order 5 Rule (4) provides that no party shall be ordered to appear in person unless he resides (a) within local limits of the Court's ordinary original jurisdiction, or (b) without such limits but at place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distance from the court-house. 17. In this case, according to the respondent-wife was residing in Alur taluk, Karnool District, Andra Pradesh. Therefore, the court ought to have fixed the date for appearance of defendant so as to allow the defendant sufficient time to enable her to appear and answer on such day. Where as this defendant resides outside the jurisdictional court then 21 Rule of order 5 has to be followed. Which provides : "21. Therefore, the court ought to have fixed the date for appearance of defendant so as to allow the defendant sufficient time to enable her to appear and answer on such day. Where as this defendant resides outside the jurisdictional court then 21 Rule of order 5 has to be followed. Which provides : "21. Service of summons where defendant resides within jurisdiction of another Court. - A summons may be sent by the Court by which it is issued, whether within or without the State, either by one of its officers [or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail Service or by any other means as may be provided by the rules made by the High Court] to any Court (not being the High Court) having jurisdiction in the place where the defendant resides. Rule 17 of Order 5 provides : "17. Procedure when defendant refused to accept service, or cannot be found - Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, [who is absent from his residence at the time when 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], and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed." 18. In this case, the allegation is that the defendant-appellant refused to receive the notice. In that case under Rule 19 of order 5 provides : "19. In this case, the allegation is that the defendant-appellant refused to receive the notice. In that case under Rule 19 of order 5 provides : "19. Examination of serving officer.- Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit." 19. No such procedure has been followed by the trial Court if returned of postal cover with a shara "refused". It is also interesting to note that the postman has not even signed below the endorsement which the defendant-wife has refused "returnable to sender" Therefore, there is total failure in serving the summons on the defendant-wife as recognized under law. Therefore, on such illegal service of notice, all further proceedings of the court appear to be vitiated on account of incurable legal defect. 20. The learned counsel for the appellant has also relied on judgment of division Bench in the case of Smt. Sahana W/o.Shivanand Kumbar V/s. Shivanand S/o.Pampathi Kumbar in MFA No.22423/2013 by order dated 29.08.2013. Wherein, at para No.7 it is held as under : "7. We have seen the trial Court records. The certified copy of the documents produced by the appellant's counsel show that the appellant never refused to receive the same. On perusal of the RPAD cover, we notice that a seal is said to have been put by the postal authorities stating that 'unclaimed to sender'. But there is nothing to show that it was actually tendered to the appellant and she refused to receive it or did not claim the same. Whenever a notice is returned in such a manner, in connection with the matrimonial matters the Court shall be very slow, care and cautious while placing the spouse exparte, it is very easy for the others to get a decree of divorce and in such circumstances the Court was bound to issue one more notice to see that notice is served through the postal authorities or through the process server of the Court. Without even sending notice through the process server, based on the postal seal, the appellant has been placed exparte which according to us is an error committed by the Civil Judge (Sr.Dn.)." 21. Further evidence on record also does not disprove that the husband has filed the petition of restitution of conjugal rights. In spite of making attempt to get back his wife through the procedure known to law and even thereafter the wife refuses to come, then the husband would be justified in asking decree for divorce on the ground of desertion. 22. It is important to note that even according to the petitioner the wife had left the house in the year 2005, what he did till 2013 is not forthcoming from the evidence on record. Therefore, the trial Court could not have passed the decree of divorce. Hence, for the above said reasons the judgment and decree passed in M.C. No.318/2013 is not at all sustainable in law, facts and evidence on record. 23. As regards, the appeal No.101732/2017 is concerned, in view of setting aside the judgment and decree in Mat.C.No.318/2013, Civil Misc. Case No.7/2014 has to be set aside. Therefore, the points for determination are answered accordingly. The appeals filed by the appellant-wife in MFA No.102839/2015 and MFA No.101732/2017 are allowed. The judgment and decree, dated 28.01.2014, passed by the Principal Judge, Family Court, Ballari in M.C. No.318/2013 and the order dated 10.07.2015 passed by the Principal Judge, Family Court, Ballari, in Civil Misc. Case No.7/2014 are set aside. The matter is remitted back to the Court below to dispose of the case by giving full opportunity to both the parties, in accordance with law. Both the parties are directed to appear before the Trial Court without expecting any further notice on 8th July 2017.