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2019 DIGILAW 2201 (RAJ)

Tavindar Kaur v. Harinder Singh

2019-08-19

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

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ORDER : Narendra Singh Dhaddha, J. 1. Issue notice to respondent. 1.1. Shri P.S. Sharma, learned counsel accepts notice on behalf of the respondent. 1.2. With the consent of both the parties, this appeal is heard finally. 2. This appeal has been filed by appellant Dr. Tavindar Kaur @ Sachi against the order of the learned Family Court No. 1, Jaipur passed on 19.7.2019 whereby the learned Family Court allowed Divorce Petition No. 3308/2019 (461/2019) filed u/s. 13(1)(ia)(ib) and 7(1)(a) of the Hindu Marriage Act, 1955 (for short "the Act"). 3. Brief facts giving rise to this appeal are that the marriage between the parties was solemnized on 29.3.2015 at Raipur (Chhatisgarh) as per Hindu rites and customs. The appellant and respondent, both are doctors by profession. Both the parties are Hindus. The behaviour of the appellant wife was cruel from the very day towards the respondent husband. The appellant wife always denied to the husband from indulging in physical relationship. Never the appellant wife fulfilled the enjoyment of her matrimonial life and treated her husband with cruelty. So, the respondent husband filed divorce petition before the learned Family Court for decree of divorce on the ground of cruelty on 16.4.2019. The learned Family Court issued notice to the appellant wife. Service of notices was deemed sufficient by affixing (Chaspandgi) on 29.4.2019. But she did not present herself. The learned Family Court decided to proceed ex parte proceeding on 25.6.2019. The learned Family Court allowed the petition vide impugned judgment and decree on 19.7.2019 and dissolved the marriage. 4. Learned counsel for the appellant submitted that the impugned judgment and decree dated 19.7.2019 is illegal, perverse and against the material available on record. Learned counsel for the appellant submitted that the appellant wife underwent kidney transplantation at Delhi on 1.9.2018 and her mother was the donor. On 29.04.2019, the appellant was in Delhi for her medical treatment. The process server also stated in its report that the appellant was out of city for her medical treatment, so he affixed the summon. It was also submitted that the learned Family Court had not ordered the process server to serve summon by Chaspandgi. The appellant was out of city temporarily for her medical treatment. So, the court should have approached liberally and made fresh attempt for service. 4.1. It was also submitted that the learned Family Court had not ordered the process server to serve summon by Chaspandgi. The appellant was out of city temporarily for her medical treatment. So, the court should have approached liberally and made fresh attempt for service. 4.1. Learned counsel for the appellant submitted that the learned Family Court had committed an error for considering the fact that the address of the witness by whom the house was identified and before whom the summons were affixed was not mentioned by the process sever. In absence of the details of the witness, it is impossible to produce the witness in the court to establish the real facts of the case. So, the appeal be allowed and the ex parte judgment and decree dated 19.7.2019 be set aside. 5. Learned counsel for the respondent supported the judgment and decree dated 19.7.2019. He submitted that the learned Family Court has passed the order in its right perspective. He submitted that the learned Family Court had not committed any error in passing the order. So, the appeal be dismissed. 6. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties, perused the impugned orders and the material available on record. 7. The process server in its report clearly mentioned that the appellant was out of city for her medical treatment. The learned Family Court had not ordered the process server to affix the summon of the appellant. In the matrimonial disputes, the court should adopt liberal view in place of hyper technique approach. It is settled principle of law that rights of the parties are never allowed to be defeated only technicalities. The appellant was out of station for her medical treatment, so summon was not personally served upon her. Therefore, the order of the learned Family Court to proceed ex parte against the appellant, is not sustainable. 8. In the result, the appeal is allowed. Impugned order is set aside. Matter is remanded back to the Family Court No. 1, Jaipur. The parties are directed to appear before the Family Court on 18.09.2019. The appellant-wife shall file her written statement/reply to the petition filed by the respondent-husband within a period of four weeks from today. 8. In the result, the appeal is allowed. Impugned order is set aside. Matter is remanded back to the Family Court No. 1, Jaipur. The parties are directed to appear before the Family Court on 18.09.2019. The appellant-wife shall file her written statement/reply to the petition filed by the respondent-husband within a period of four weeks from today. The Family Court shall thereafter grant three months time to the appellant to adduce her evidence and thereafter maximum one month's time shall be granted to the respondent-husband to adduce evidence in rebuttal. The Family Court shall make an endeavour to finally decide the main petition itself within a period of six months from the date next fixed before it.