Case Note & Summary
This is an appeal filed by the husband against an exparte decree of dissolution of marriage granted by the Family Court, Aurangabad on the grounds of cruelty and desertion under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955. The marriage between the parties was solemnized on 23 June 2007, and a son was born out of the wedlock. The wife had filed a petition seeking divorce, alleging various acts of cruelty including the husband's unemployment, addiction to liquor, suspicion of her character, physical abuse, causing an abortion, and ultimately deserting her. The Family Court proceeded exparte against the husband after holding that he was served with summons based on a bailiff's report that he had refused service. The husband challenged this exparte decree in appeal, arguing that the service of summons was not in accordance with Rule 19 of the Family Court Rules, 1988 and Order V Rules 17 and 19 of the Code of Civil Procedure, 1908. He contended that the bailiff's report was not supported by an affidavit, the court did not examine the bailiff, and thus there was no valid proof of service, leading to a violation of the principles of natural justice. The wife's counsel countered that service was properly effected as the husband had refused the summons and that the parties had been living separately for over four years, so the divorce decree should not be disturbed. The High Court, after examining the relevant procedural provisions, held that proof of service of summons is an essential condition for proceeding exparte. It relied on a previous Division Bench decision in Deepali W/o. Irappa Sonwane Vs Pratap Irappa Sonwane, (2015) 3 ALL MR 341, which held that even if a bailiff gives a report on affidavit, the court has the discretion to examine him to ascertain correctness. In the present case, there was no affidavit from the bailiff, nor any other evidence to prove service, making the service report insufficient. The Court concluded that the Family Court had erred in holding the service proper and that the exparte decree was passed without valid proof of service, thereby violating natural justice. Accordingly, the appeal was allowed; the impugned judgment and decree dated 14 September 2017 were set aside, and the matter was remanded to the Family Court for fresh decision after granting an opportunity of hearing to both parties. The parties were directed to appear before the Family Court on 30 July 2018, and costs were to be borne as incurred.
Headnote
A) Family Law - Divorce - Exparte Decree - Service of Summons - Proof of Service - Family Court Rules, 1988, Rule 19; Code of Civil Procedure, 1908, Order V Rules 17, 19 - The husband appealed against an exparte divorce decree contending that the summons were not properly served as required by the procedural rules. The High Court found that the bailiff's report merely stated 'refused' and was not supported by an affidavit, nor was the bailiff examined, thus failing to prove service. Held: The exparte decree was set aside and the matter remanded to the Family Court for fresh trial after granting opportunity to both parties, as proof of service is a precondition for proceeding exparte (Paras 9-13).
Issue of Consideration
Whether the Family Court erred in passing exparte decree by holding service of summons on the husband as proper and legal, without compliance with Rule 19 of Family Court Rules, 1988 and Order V Rules 17 and 19 of Code of Civil Procedure, 1908?
Final Decision
Appeal allowed. Impugned judgment and decree dated 14.09.2017 passed in Petition No.A252/2016 by Principal Judge, Family Court, Aurangabad is quashed and set aside. The petition is remanded to the Family Court for fresh decision after granting opportunity of hearing to both parties. Parties to appear before Family Court on 30.07.2018. Costs to be borne as incurred.
Law Points
- proof of service of summons is essential for exparte decree
- service must be proved by affidavit of bailiff or other evidence under Rule 19 of Family Court Rules
- 1988 and Order V Rules 17 and 19 of Code of Civil Procedure
- 1908
- mere endorsement of refusal without affidavit and without examining bailiff is insufficient to proceed exparte
- exparte decree passed without proper proof of service violates natural justice
