Case Note & Summary
The appellant, Deepali Pratap Sonawane, the wife, challenged the judgment and decree dated 10th February 2012 passed by the Family Court, Aurangabad in Petition No. A-311/2011, which granted a divorce to the respondent husband, Pratap Irappa Sonawane, under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955. The husband had filed the petition on 19th September 2011 on grounds of desertion. The Family Court issued notice to the wife returnable on 7th October 2011. Summons were sent via bailiff to the wife's address (N-12, B-Sector, T.V. Center, HUDCO, Aurangabad) but were returned unserved on 17th October 2011 with a report that the wife was not found at that address and local residents stated she was not residing there. Subsequently, the bailiff submitted a report that he attempted to serve the summons upon the wife in the court premises and she refused to accept. Based on this, the Family Court proceeded ex parte and granted the divorce decree. The wife appealed, arguing that she had no occasion to be in the court premises and that the service was not proper. The High Court perused the record and found that the bailiff's report did not establish proper service. The court noted that the initial attempt to serve at the correct address failed, and the subsequent report of refusal in court premises was not credible as the wife had no reason to be there. The court also observed that the Family Court had incorrectly recorded the date as 17.11.2011 instead of 17.10.2011. The High Court held that the ex parte decree was passed without proper service of summons and was therefore a nullity. The appeal was allowed, the impugned judgment and decree were set aside, and the matter was remanded back to the Family Court for fresh hearing after giving the wife an opportunity to be heard.
Headnote
A) Family Law - Divorce - Ex Parte Decree - Service of Summons - The Family Court passed an ex parte decree of divorce under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955 within 4.5 months of filing, based on a bailiff's report that the wife refused to accept summons in court premises. The wife appealed, contending she had no occasion to be in court premises. The High Court found that the bailiff's report did not prove proper service as the wife's address was not correctly verified and the alleged refusal was not credible. Held that the ex parte decree was passed without proper service and was liable to be set aside (Paras 2-6).
Issue of Consideration
Whether the ex parte divorce decree passed by the Family Court was valid when the service of summons on the wife was not properly effected.
Final Decision
The appeal is allowed. The impugned judgment and decree dated 10th February 2012 passed by the Family Court, Aurangabad in Petition No. A-311/2011 is set aside. The matter is remanded back to the Family Court for fresh hearing after giving the appellant-wife an opportunity to be heard.
Law Points
- Service of summons must be effected at the correct address
- refusal to accept summons must be properly proved
- ex parte decree without proper service is a nullity
