Case Note & Summary
The case arose from a Letters Patent Appeal where the appellant sought to serve notice on respondent no.5. The bailiff returned the notice unserved because only the wife of respondent no.5 was present, and the bailiff followed the Bombay High Court amendment to Order V Rule 15 of the Code of Civil Procedure, 1908, which permits service only on adult male members of the family. The Court examined the amendment and found it ex facie at variance with the central enactment, which allows service on any adult member of the family. The Court held that the Bombay amendment is ultra vires the Code of Civil Procedure, 1908, as it restricts the scope of the rule and discriminates against women, violating Article 14 of the Constitution. The Court directed that service of summons may be effected on any adult member of the family, regardless of gender, and struck down the Bombay amendment. The Court also noted that the amendment was not necessary and that the central rule already provides adequate means for service.
Headnote
A) Civil Procedure - Service of Summons - Gender Discrimination - Order V Rule 15, Code of Civil Procedure, 1908 - Bombay Amendment - The Bombay High Court amendment substituted 'adult male member' for 'adult member' in Order V Rule 15, restricting service to male family members only. The Court held that this amendment is ultra vires the parent Act and violates Article 14 of the Constitution as it discriminates against women. The Court directed that service may be effected on any adult member of the family, irrespective of gender, and struck down the Bombay amendment. (Paras 1-6)
Issue of Consideration
Whether the Bombay High Court amendment to Order V Rule 15 of the Code of Civil Procedure, 1908, which restricts service of summons to adult male members of the defendant's family, is valid and constitutional.
Final Decision
The Court held that the Bombay High Court amendment to Order V Rule 15 of the Code of Civil Procedure, 1908, is ultra vires the parent Act and violates Article 14 of the Constitution. The Court directed that service of summons may be effected on any adult member of the family, irrespective of gender, and struck down the Bombay amendment.
Law Points
- Gender equality
- Service of summons
- Ultra vires amendment
- Constitutional validity
- Article 14
- Order V Rule 15 CPC
- Bombay High Court amendment
Case Details
2011 LawText (BOM) (09) 89
Civil Application No.666/2011 with Civil Application No.667/2011 in Letters Patent Appeal No. 373/2011 in Writ Petition No. 3898/2011 (Decided)
S. A. Bobde, M. N. Gilani
Mr. R. L. Khapre for appellant, Mrs. Bharti Dangre for respondent nos. 1 to 4, Mr. R. S. Kale for intervenor
Rajkumar Sampatraoji Kuthe
The State of Maharashtra, The Collector, Gondia, Dy. Collector and Returning Officer, Assistant Registrar, Cooperative Societies (Milk), Gondia, Premkumar Shivkumar Jaiswal, Ganga Dudh Uptadak Sahakari Sanstha Maryadit, The Gondia District Central Cooperative Bank Ltd. Gondia
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Nature of Litigation
Civil application in Letters Patent Appeal regarding service of notice.
Remedy Sought
The appellant sought to serve notice of the Letters Patent Appeal on respondent no.5.
Filing Reason
The bailiff returned the notice unserved because only the wife of respondent no.5 was present, and the bailiff followed the Bombay High Court amendment to Order V Rule 15 CPC which permits service only on adult male members.
Issues
Whether the Bombay High Court amendment to Order V Rule 15 CPC, restricting service to adult male members, is valid.
Whether the amendment violates Article 14 of the Constitution.
Submissions/Arguments
The appellant's counsel argued that the notice was returned unserved because the bailiff followed the Bombay amendment requiring service on adult male members only.
The Court noted that the amendment is ex facie at variance with the central enactment.
Ratio Decidendi
The Bombay High Court amendment to Order V Rule 15 CPC, which restricts service of summons to adult male members of the family, is ultra vires the Code of Civil Procedure, 1908, and violates Article 14 of the Constitution as it discriminates against women. Service may be effected on any adult member of the family.
Judgment Excerpts
This rule is ex facie at variance with Order V Rule 15 as enacted by the Code of Civil Procedure by the Parliament, which reads as follows: '15. Where service may be on an adult member of defendant’s family...'
The amendment reads as follows: '[Bombay] For the existing rule 15 and its marginal note, substitute the following as rule 15 and marginal note: 15. Where service may be on male member of defendant’s family...'
Procedural History
The appellant filed a Letters Patent Appeal and sought to serve notice on respondent no.5. The bailiff returned the notice unserved due to the Bombay amendment. The matter came before the High Court for consideration of the validity of the amendment.
Acts & Sections
- Code of Civil Procedure, 1908: Order V Rule 15
- Constitution of India: Article 14
