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2022 DIGILAW 319 (CHH)

Laxmikant Jaiswal S/o Ravikumar Jaiswal v. Sudhalata Jaiswal W/o Laxmikant Jaiswal

2022-07-20

DEEPAK KUMAR TIWARI, GOUTAM BHADURI

body2022
JUDGMENT : Deepak Kumar Tiwari, J. 1. This Appeal has been preferred under Section 19(1) of the Family Courts Act, 1984 against the judgment dated 12.2.2016 passed by the Family Judge, Camp Court, Katghora, District Korba in Civil Suit No.78-A/2014, whereby the suit of the appellant filed under Section 13 of the Hindu Marriage Act, 1955 to dissolve the marriage with the respondent solemnized on 19.5.2013 was dismissed. 2. Perusal of the record would reveal that the appellant had filed a civil suit on 10.11.2014 and amended the address of the respondent-wife on 10.4.2015, and the case was fixed on 8.5.2015 & 10.7.2015. On both the dates, the Presiding Officer was on leave, therefore, the case was listed on 8th September, 2015. On that date, it was ordered that the non-applicant be served through ordinary and registered post and the case was fixed for appearance of the non-applicant on 8th October, 2015. On that date, the registered notice was returned with an endorsement dated 24th September, 2015 of the Postal Authorities that ‘the recipient had gone out of station’. The ordinary notice was returned with an endorsement by the Process Server Santosh Kumar that ‘proper address was not given, therefore, service could not be made’. On 8th October, 2015, the learned trial Court has entertained the application of the appellant and ordered for substituted service. The ordinary notice was returned with an endorsement by the Process Server Santosh Kumar that ‘proper address was not given, therefore, service could not be made’. On 8th October, 2015, the learned trial Court has entertained the application of the appellant and ordered for substituted service. The said order sheet reads thus:- ^^08-10-2015 % vkosnd Lor% mifLFkrA vukosfndk vfuokfgZrA vukosnd dks tkjh jftLVMZ uksfVl bl Vhi ds lkFk vne rkfey izkIr fd izkIrdrkZ ckgj x;h gS] blfy, okil fd;k x;k rFkk lk/kj.k uksfVl bl Vhi ds lkFk vne rkfey dh izkIrdrkZ dk lgh irk ugha pykA blh Lrj ij vkosnd ds }kjk ,d vkosnu i= bl vk'k; dk is'k fd;k x;k fd mlds }kjk dbZ ckj uksfVl tkjh djok;k x;k gS] ysfdu vukosfndk uksfVl ysus ls cp jgh gS A blfy, og v[kckj ds e/;e ls vukosfndk dks uksfVl tkjh djokuk pkgrk gS] mDr vkosnu i= ij lquk x;k A izdj.k dk voyksdu fd;k x;kA vukosfndk dks vkosnd ds }kjk mifLFkfr gsrq uksfVl tkjh djk;k tk jgk gSA tks mlds ckgj jgus vFkok lgh irk ugha gksus dh Vhi ds lkFk vne rkfey izkIr gks jgk gS] ftlls ;g nf'kZr gksrk gS fd vukosfndk uksfVl ysus ls cp jgh gSA vr% vkosnd ds }kjk is'k vkosnu i= Lohdkj fd;k tkrk gS rFkk vknsf'kr fd;k tkrk gS fd vukosfndk ds {ks= esa izpfyr nSfud lekpkj i= esa izdk'ku ds ek/;e ls tkjh djk;s] ftldk O;; vkosnd Lo;a ogu djsxkA bl gsrq vkosnd fof/kor ryokuk vnk djsA vkxkeh frfFk vukosfndk dh mifLFkfr gsrq fnukad &17-11-2015 lgh@& U;k;k/kh’k] dqVqEc U;k;ky; dSEi dksVZ dV?kksjk] ftyk dksjck¼N-x-½ 3. The notice for substituted service was published in Patrika Newspaper of Bilaspur Edition on 21st October, 2015, however, the respondent did not appear on the hearing date, therefore, on 17.11.2015, the learned trial Court proceeded ex-parte. However, after taking ex-parte evidence, the Court below reached to the conclusion that the appellant has failed to prove the grounds raised by him and by the impugned judgment, his suit was dismissed against which the appellant has preferred this Appeal. 4. Under Order 5 Rule 20 of the CPC substituted service is permissible only if the Court records reasons after being fully satisfied that the service cannot be effected in ordinary manner and the defendant is keeping out of way for the purpose of avoiding service. 4. Under Order 5 Rule 20 of the CPC substituted service is permissible only if the Court records reasons after being fully satisfied that the service cannot be effected in ordinary manner and the defendant is keeping out of way for the purpose of avoiding service. In the present case, the Postal Authorities have returned the registered notice stating that the recipient had gone out of station and contrary to it, the Process Server has returned the ordinary notice stating that proper address was not given, therefore, the service could not be made. Considering these two different reports, this Court deems it appropriate that the trial Court should have directed for effecting summons/notice on the respondent afresh before proceeding, because there is no material on record to show that the respondent refused to receive the notice or avoided the service. So, there is no justification to resort to substituted service by way of publication. 5. In the matter of Mrs. Payal Ashok Kumar Jindal vs Captain Ashok Kumar Jindal, (1992) 3 SCC 116 , in para-14, the following has been observed:- “14. After the notices sent by registered post were received back, the Family Court did not make any attempt to serve the appellant through the process of the Court. The appellant was no stranger to the respondent. She was his wife. It could not have been difficult for him to find out the address where she was staying. Under the circumstances, resort to the substitute service by way of publication in the newspaper was not justified.” 6. In the matter of Smruti Pahariya Vs. Sanjay Pahariya, (2009) 13 SCC 338 , in para-14, it was observed that ‘Direction for substituted service under Order 5 Rule 20 can be passed only when the court is satisfied “that there is reason to believe that the defendant is keeping out of the way for the purpose of evading service, or that for any other reason the summons cannot be served in the ordinary way”.’ 7. In the matter of Yallawwa v. Shantavva, (1997) 11 SCC 159 , the following has been observed in para-5:- “5.....................The learned counsel for the respondent was also justified in submitting that the trial court could not have almost automatically granted the application for substituted service without taking steps for serving the respondent by ordinary procedure as laid down by Order V Rules 12, 15 and 17 CPC. It must be kept in view that substituted service has to be resorted as the last resort when the defendant cannot be served in the ordinary way and 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...................................” 8. The Family Courts Act, 1984 was enacted for adopting a human approach to the settlement of family disputes and achieving socially desirable results and consistent with the said human approach, which is expected to be adopted by the Family Court Judge, Section 9 of the Act casts a duty upon the Family Court Judge to assist and persuade the parties to come to a settlement. The reason for constitution of Family Court is for settlement of family dispute, if possible by the pre-litigation proceeding. To achieve the said object procedure has been prescribed in sub-section (2) of Section 23 of the Hindu Marriage Act, 1955 before proceeding to grant any relief under this Act, so a shortcut route cannot be adopted by the Courts that in case a party to a proceeding does not remain present, at the most, the court can proceed to decide the case exparte against him/her. 9. In Jagraj Singh v. Birpal Kaur (2007) 2 SCC 564 , the importance of appearance of the parties in matrimonial disputes has been highlighted. The relevant paragraphs of the said judgment are given below : “11. We have given our anxious consideration to the rival submissions of the learned counsel. We must admit that we are unable to accept bald assertion of the counsel for the appellant that no court of law can direct a party to remain personally present. Apart from the matters under the Act i.e. the Hindu Marriage Act, 1955, even in civil matters also, a court of law may order either the plaintiff or the defendant to remain personally present in court. For instance, Rule 1 of Order 3 of the Code of Civil Procedure, 1908 (“the Code”, for short) states that a party may appear in court either in person or by his recognised agent or by a pleader on his behalf. For instance, Rule 1 of Order 3 of the Code of Civil Procedure, 1908 (“the Code”, for short) states that a party may appear in court either in person or by his recognised agent or by a pleader on his behalf. The proviso to the said rule, however, declares that any such appearance shall, if the court so directs, be made by the party in person. Likewise, Rule 12 of Order 9 provides that where a plaintiff or defendant, who was ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the court for failing to so appear, he shall be subject to all the provisions of the said order applicable to the plaintiffs and the defendants respectively who fail to appear. It is thus clear that in appropriate cases, a civil court may direct a party to the suit—plaintiff or defendant, to appear in person. 12. Special provisions have been made in the Code by the Code of Civil Procedure (Amendment) Act, 1976, in respect of suits relating to matters concerning the family in Order 32-A. Rule 3 of the said order requires the court to make efforts for settlement of family disputes. The said rule reads thus: “3. Duty of court to make efforts for settlement.—(1) In every suit or proceedings to which this order applies, an endeavour shall be made by the court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit. (2) If, in any such suit or proceeding, at any stage it appears to the court that there is a reasonable possibility of a settlement between the parties, the court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement. (3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the court to adjourn the proceedings.” 13. The Act (Hindu Marriage Act, 1955) is a special Act dealing with the provisions relating to marriages, restitution of conjugal rights and judicial separation as also nullity of marriage and divorce. (3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the court to adjourn the proceedings.” 13. The Act (Hindu Marriage Act, 1955) is a special Act dealing with the provisions relating to marriages, restitution of conjugal rights and judicial separation as also nullity of marriage and divorce. Chapter V (Sections 19 to 28-A) deals with jurisdiction and procedure of court in petitions for restitution of conjugal rights, judicial separation or divorce. Subsection (2) of Section 23 expressly states that where a petition for divorce is filed under Section 13 of the Act on certain grounds, before proceeding to grant any relief, the Court, “in the first instance”, should make an endeavour to bring about reconciliation between the parties. 16. The above decisions of this Court make it more than clear that the approach of a court of law in matrimonial matters is much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire. Matrimonial matters must be considered by courts with human angle and sensitivity. Delicate issues affecting conjugal relations have to be handled carefully and legal provisions should be construed and interpreted without being oblivious or unmindful of human weaknesses. Probably, this aspect has been kept in view by the legislature in enacting subsection (2) of Section 23 of the Act by requiring a court to make all efforts to bring about reconciliation between the parties. 26. From the above case-law, in our judgment, it is clear that a court is expected, nay, bound, to make all attempts and endeavours for reconciliation. To us, subsection (2) of Section 23 is a salutary provision exhibiting the intention of Parliament requiring the court “in the first instance” to make every endeavour to bring about a reconciliation between the parties. If in the light of the above intention and paramount consideration of the legislature in enacting such provision, an order is passed by a matrimonial court asking a party to the proceeding (husband or wife) to remain personally present, it cannot successfully be contended that the court has no such power and in case a party to a proceeding does not remain present, at the most, the court can proceed to decide the case ex parte against him/her. Upholding of such argument would virtually make the benevolent provision nugatory, ineffective and unworkable, defeating the laudable object of reconciliation in matrimonial disputes. The contention of the learned counsel for the appellant, therefore, cannot be upheld.” 10. In the matter of R. Kasthuri and Others Vs. M. Kasthuri and Others, (2018) 5 SCC 353 , it was observed that if the dispute cannot be settled, the same has to be adjudicated by adoption of a process which is different from what is adopted in ordinary civil proceedings. In dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The object of establishment of the Family Courts Act is to promote conciliation. 11. From the forgoing discussion it is explicit that the learned family court, without proper consideration of the contrary report of the process server and the postal authorities about the address of the respondent, has not made any investigation about such authenticity, even without taking steps for serving the respondent by ordinary procedure as laid down by Order V Rules 12, 15 and 17 CPC, accepted the application of the appellant without any affidavit and recorded its satisfaction for substituted service, even after such publication proceeded with the trial exparte, and dismissed the case of the appellant after recording his exparte evidence and hearing. It is found that the learned family Court dealt with the family disputes in the same manner as other civil matters though the family Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and it is mandate of the law that it should make reasonable efforts at settlement before the commencement of the trial. The Court has ample power to make an order for personal appearance of the parties, to achieve such goal and to resolve the issue of matrimonial matters in a fruitful manner. The Court ought not grant the application for substituted service without taking steps for serving the respondent by ordinary procedure as laid down by Order V Rules 12, 15 and 17 CPC. 12. As the respondent-wife has now appeared in the present Appeal, therefore, for the aforesaid reasons, this Court is of the opinion that substituted service is not proper. 13. 12. As the respondent-wife has now appeared in the present Appeal, therefore, for the aforesaid reasons, this Court is of the opinion that substituted service is not proper. 13. In view of the above, to do complete justice between the parties, this Court deems it appropriate to set aside the judgment dated 12.2.2016 passed by the Family Judge, Camp Court, Katghora, District Korba in Civil Suit No.78-A/2014 and remand the matter to the Family Court to decide the case afresh within a period of 6 months from the date of receipt of certified copy of this judgment. Parties are directed to appear before the Family Judge, Camp Court, Katghora, District Korba on 28 th July, 2022. Ordered Accordingly. 14. With the aforesaid directions and observations, the Appeal is disposed of with no order as to costs.