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Rajasthan High Court · body

2025 DIGILAW 1932 (RAJ)

Vijay Upadhyay, S/o Sh. Ganpat Lal v. Lalita, W/o Sh. Vijay Upadhyay

2025-12-04

ANAND SHARMA, FARJAND ALI

body2025
JUDGMENT : ANAND SHARMA, J. 1. This DBCMA under Section 19 of the Family Courts Act, 1984 has been filed by the appellant-husband against the order dated 26.11.2024 passed by learned Judge, Family Court No.1, Udaipur in Civil Misc. Case No.42/2019 whereby an application moved on his behalf under Order IX Rule 13 read with Section 151 CPC for setting aside judgment and decree dated 20.09.2017, has been dismissed. 2. Brief facts giving rise to the instant appeal are that the respondent-wife filed one divorce petition under Section 13 of the Hindu Marriage Act, 1955 against the appellant-husband for dissolution of their marriage, solemnized on 15.05.2010. 3. It is stated that on the aforesaid divorce petition, notices were issued for effectuating service upon the appellant through registered post with AD on 23.03.2017, returnable on 12.05.2019. Thereafter, it was mentioned in the order-sheets that despite service, the appellant did not appear before the court below. However, on account of the fact that the Presiding Officer was on leave, the matter was kept for 20.07.2017. On that day, ex-parte proceedings were drawn against the appellant; and in furtherance thereof ex-parte judgment and decree dated 06.03.2018 was delivered by the court below for granting decree of divorce in favour of the respondent-wife and resultantly the marriage solemnized between the parties has been dissolved. 4. In the application under Order IX Rule 13 read with Section 151 CPC filed by the appellant, it has been averred that no notice were ever served upon the appellant-husband. This was for the reason that, at the relevant time when the notices were issued, he was residing at Village Raopura, Post Jarola, Tehsil Borsar, District Anand (Gujarat). However, in the divorce petition, primary address of the appellant was wrongly shown as resident of Batheda, District Udaipur, even though the another address of Raopura, District Anand was mentioned, yet while sending notices, the court below committed a serious mistake as the notice through process server was allegedly sent to the appellant only at the address – Villlage Batheda, District Udaipur. It is submitted that such address was totally incomplete as it did not specify the Tehsil in which Village Batheda is situated, whereas there are more than one village named as Batheda in District Udaipur. It is submitted that such address was totally incomplete as it did not specify the Tehsil in which Village Batheda is situated, whereas there are more than one village named as Batheda in District Udaipur. It is submitted that although there were directions for sending notices through registered post also, yet there is no reference in the order-sheets to show as to whether the notices sent through registered post were served upon the appellant-husband or not. 5. While referring the report of service drawn by the process server, it was submitted on behalf of the appellant that although the notices were never served upon the appellant by the process server, yet an incorrect report has been given and the signatures shown at the summons were fake. It is reiterated that on the report made by the process server, no date of service has been mentioned and even otherwise at the relevant time, the appellant was residing in District Anand at Gujarat, therefore, no question of personal service at Village Batheda District Udaipur was possible. 6. It is further submitted that apart from the aforesaid divorce petition, other litigations were also going on between the appellant-husband and the respondent-wife. In the criminal case lodged by the respondent-wife, the appellant continued to appear from 26.09.2016 to 11.04.2019, yet during entire proceedings, it was never disclosed by the respondent-wife that she had instituted any divorce case against the appellant-husband. No such reference or indication was ever given by her in the revision petition filed by the appellant before learned Additional District and Sessions Judge No.3, Udaipur. It was highlighted that the respondent-wife has been habitual of forging the documents, as earlier also in order to get pension under the Social Security Pension Scheme, floated by Social Justice and Empowerment Department, Government of Rajasthan, a false affidavit was filed by her on 14.05.2013 mentioning that divorce between the appellant and the respondent-wife had taken place, whereas on that date, no such decree of divorce was in existence. It was submitted that first time, the appellant came to know about decree of divorce on 03.06.2019 before the court at Kanod, where such information was furnished by the respondent-wife herself through application in writing. It was submitted that first time, the appellant came to know about decree of divorce on 03.06.2019 before the court at Kanod, where such information was furnished by the respondent-wife herself through application in writing. Immediately after having the knowledge, the appellant submitted an application for obtaining certified copy of judgment and decree dated 24.06.2019 and without causing any further delay, he filed the application under Order IX Rule 13 read with Section 151 CPC for recalling and setting aside ex-parte proceedings dated 20.09.2017 as well as judgment and decree dated 06.03.2018. 7. It is submitted by learned counsel for the appellant that the appellant is keen to contest the divorce petition on merits and since he was never served summons of the divorce petition, therefore he had bonafide and plausible reasons for non- appearance before the Family Court, however, without properly examining the question of valid service upon the appellant, ex- parte decree of divorce has been granted against the appellant which is causing grave prejudice and miscarriage of justice to the appellant. 8. The appeal was vehemently opposed by learned counsel for the respondent-wife and it was submitted that the appellant deliberately avoided appearance before the Family Court, despite there being valid service of summons upon him. It was emphasized that the signatures of receiving summons put-over the notices are not forged and have been put by the appellant himself. However, only for the purpose of causing delay, as well as to harass the respondent-wife, the appellant did not appear before the court below. It was further submitted that the appellant has not produced any oral evidence before the Family Court to prove the allegations levelled by him in application under Order IX Rule 13 read with Section 151 CPC, whereas the respondent-wife examined herself and produced documentary evidence to negate the allegations of service through forgery. It is submitted that the court below has passed order dated 26.11.2024 after meticulously examining the facts of the case, material on record and law prevailing at the relevant time, hence there is no scope of interference in the instant appeal and the same is liable to be dismissed. 9. We have heard rival submissions put-forward by learned counsel for the parties and perused the record. 10. 9. We have heard rival submissions put-forward by learned counsel for the parties and perused the record. 10. As the dispute revolves around the process of service of summons in Divorce Petition before the Family Court, it is relevant to indicate that as per Section 10 of the Family Courts Act, 1984, the provisions of CPC are applicable in the proceedings conducted by the Family Court and hence, the provisions with regard to service of summons as mentioned in CPC are also attracted for regulating the service of summons before the Family Courts also. 11. Order V Rule 9 CPC prescribes the mode of issuance of summons and Order V Rule 9 (3) read with Rule 10 CPC further lays down that summons may also be sent through registered post with acknowledgment due in addition to ordinary process through process server. In the instant case, on perusal of order sheets of divorce petition filed before the Family Court, it emerges that although summons were sent through registered post with AD, yet there is no report to satisfy as to whether such summons were ever served upon the appellant or not. 12. It has not been disputed by learned counsel for the respondent that summons which is stated to have been served, were sent through process server. However, bare perusal of original summons available in the record of Family Court would reveal that said summons were sent to the appellant-husband by showing his address as R/o Batheda, District Udaipur, which is evidently an incomplete address, as the complete address of the appellant was Village Batheda Khurd, Tehsil Vallabh Nagar, District Udaipur. Hence, neither name of the village was properly mentioned in the summons, nor was there any reference of Tehsil. Therefore, in light of submissions made by learned counsel for the appellant that there are more than one village in District Udaipur having the name of Batheda, a reasonable doubt would arise with regard to veracity of effectuation of service of summons upon the appellant without there being complete address on the summons. 13. Meticulous examination of original summons would also reveal that at the top of summons ^^fot; dqekj^^ has been written which is being reported by the process server as the signatures of the appellant-husband but the same has been disputed by the appellant referring the same to be forged signatures. 13. Meticulous examination of original summons would also reveal that at the top of summons ^^fot; dqekj^^ has been written which is being reported by the process server as the signatures of the appellant-husband but the same has been disputed by the appellant referring the same to be forged signatures. However, it also comes out by perusal of the original summons that the alleged signatures of Vijay Kumar are existing just underneath one endorsement of ‘receiving the summons and copy of petition’ by writing in hindi ^^ leu udys izkIr gqbZ^^ . Such endorsement of ‘receiving summons and copy of the petition’ has apparently been drawn in the same handwriting in which the process server has written his report. There is manifest and explicit difference in the writing as well as use of pens while mentioning such endorsement of ‘receiving summons and copy of petition’ as well as in the writing and pen used for the signatures allegedly shown to be of the appellant-husband. We are of the opinion that when the recipient of the notice is an educated person, the endorsement made above his signature was supposedly made by himself not by the process server. As it is evident from bare perusal of the original summon, the endorsement was made by someone else and the signature was appended by a different person. Certainly a grave suspicion arises in the manner of service based upon which, the Family Court decided to proceed ex-parte and subsequently, decreed the petition. 14. Such contradictions, variances and inconsistencies would put a reasonable cloud of suspicion over the report of service of summons. However, while deciding the application under Order IX Rule 13 read with Section 151 CPC, the Family Court has overlooked these crucial and significant facts. 15. Merely on account of the fact that the appellant husband did not produce any oral evidence to support his application under Order 9 Rule 13 read with Section 151 CPC would not be the only ground to non-suit him, more so when the aforesaid facts are conspicuous to infer that proceedings of service of summons have not been effectuated in proper manner. While examining the record as well as the facts of the present case, we cannot overlook the significant fact that proceedings before the Family Court are usually conducted by the parties by appearing in person who are not expert of procedure in legal proceedings. While examining the record as well as the facts of the present case, we cannot overlook the significant fact that proceedings before the Family Court are usually conducted by the parties by appearing in person who are not expert of procedure in legal proceedings. Even otherwise, the disputes before the Family Court arisen after marital discord ought not to have been decided without providing due opportunity of hearing to any of the party. Hyper-technical view regarding procedure in deciding the matters before the Family Court may certainly cause failure of justice to the party, who has not been heard. 16. This Court while deciding similar matter arising out of the proceedings under Order IX Rule 13 CPC drawn by the Family Court, has examined different provisions of the Family Courts Act, 1984 and CPC, in the case of DBCMA NO.5099/2018 ( Smt. Teena versus Kanhaiyalal , decided on 14.05.2025, at Jaipur Bench) wherein following observations have been given:- “21. Be that as it may, looking to the nature of the dispute involved in the instant case relating to matrimonial problem between the parties as well as the purpose of constitution of the learned Family Court, we are of the considered view that the matrimonial dispute is not just a legal dispute but is a social concern and family problem; therefore, while enacting the Family Courts Act, 1984, in view of Section 13 of the Act of 1984, a specific provision was inserted by the Legislature that no party to a proceeding before the learned Family Court shall be entitled to be represented by legal practitioner. Thus, the purpose was altogether clear that instead of dealing with settlement of disputes relating to marriage and family affairs, a different approach was to be adopted which should be far from legal technicalities. Hence, under such circumstances, we can safely hold that a party to a matrimonial litigation cannot be deprived of his/her right to put his/her case before the Court by way of filing pleadings or adducing evidence, merely on account of fact that on a particular day, he/she was not present before the Court. 22. Hence, under such circumstances, we can safely hold that a party to a matrimonial litigation cannot be deprived of his/her right to put his/her case before the Court by way of filing pleadings or adducing evidence, merely on account of fact that on a particular day, he/she was not present before the Court. 22. On examining the record, it is made clear that the wife is keen to contest the matter on merits and only therefore, for last so many years, she is trying her level best for setting aside the ex-parte decree with a prayer to provide her opportunity of hearing, so that she can put forward her defence before the Court. In pith and substance, the wife is simply making a request to decide the dispute between the parties on merits after recording of evidence. We are satisfied that in view of the aforesaid provisions of CIVIL PROCEDURE CODE as well as the material on record, the wife is entitled for hearing before the Family Court on merits in application under Section 13 of the Act of, 1955. 23. It would be relevant to refer that the learned Single Judge of this Court in the case of Shyam Lal Vs. Smt. Leelawati reported in AIR2007RAJ93 has held as under:- "10. A matrimonial dispute is not just a legal dispute, but more importantly it is a family problem and a social concern. Hence, matrimonial disputes should not be viewed from the glasses of legal technicalities. It should be appreciated at the human level of being a conflict between a husband and wife. Such issues should be dealt with sensitively rather than mechanically, as has been done in the present case. 17. The aforesaid view has further been followed by this Court in the judgment dated 11.07.2025 at Jaipur Bench, passed in DBCMA No.298/2025 ( Shahid Ali versus Smt. Afsana ). 18. We are in complete agreement with the view taken by Coordinate Bench in the aforesaid cases of Smt. Teena (supra) and Shahid Ali (supra). 19. In light of foregoing discussion, the instant appeal succeeds and order dated 26.11.2024 passed by Family Court No.1, Udaipur is hereby quashed and set aside. The application under Order IX Rule 13 read with Section 151 CPC filed by the appellant-husband is allowed and consequently, the ex-parte judgment and decree dated 06.03.2018 also stands quashed. 19. In light of foregoing discussion, the instant appeal succeeds and order dated 26.11.2024 passed by Family Court No.1, Udaipur is hereby quashed and set aside. The application under Order IX Rule 13 read with Section 151 CPC filed by the appellant-husband is allowed and consequently, the ex-parte judgment and decree dated 06.03.2018 also stands quashed. Parties are directed to appear before the Family Court No.1, Udaipur on 05.01.2026 for further proceedings. Looking to the nature of dispute as well as the fact that the application under Section 13 of the Hindu Marriage Act, 1955 was filed by the respondent wife long back, we find it appropriate to direct the appellant-husband to file his reply to the application under of the Hindu Marriage Act, 1955 within a period of one month from the date of re-initiation of proceedings by the Family Court, Udaipur in compliance of this order and the Family Court is also expected to expedite the proceedings. 20. In view of above, the appeal filed by the appellant-husband stands allowed. Record of the Family Court be sent back forthwith.