Pratima Dey (Bhowmik) vs Parimal Bhowmik

This is an appeal under Section 19(1) of the Family Courts Act, 1984 from the judgment dated 25.03.2015 delivered in T.S.(Divorce) 323 of 2013 by the Judge, Family Court, Agartala, West Tripura. By the said judgment, the marriage between the appellant and the respondent has been dissolved on the ground of cruelty.

The respondent herein filed the petition under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 on the allegation that few days after the marriage, the appellant started behaving roughly with the respondent quite frequently. The respondent, a daily labourer by profession, tried to negotiate with the circumstances, but ultimately he failed. The appellant herein used to pick up quarrel with the respondent and his mother every now and then, which caused serious mental agony, constituting cruelty.

The appellant herein had pressured the respondent to transfer the landed properties be transferred in her name. On being refused, the appellant lodged a complaint against the respondent for committing cruelty on her and, as a result a case was registered by the police under Section 498A of the IPC. The respondent was in jail before he was granted bail.

The respondent, despite that bitterness unleashed by the appellant, went to her house to persuade her for reconstruction of the marital relation but she did not respond to such approach. The said allegation made by the respondent in his petition, filed for dissolution of marriage, remained uncontroverted as the appellant neither did file any rebuttal against the allegation made in the petition nor did she otherwise contested the said case. Finally, as it is gathered from para-3 of the judgment dated 25.03.2015 that the notice could not be properly served and, as a result, the substituted service was permitted by the court and the notice was published in the newspaper on 22.06.2014. Despite that substituted service, the appellant did not appear to take part in the proceeding and as such the case proceeded ex parte against her by the order dated 02.12.2014.

The appellant herein has taken a specific ground that in the wed-lock two children were born and they did not get the proper care from the respondent. Moreover, the father of the appellant did not have the financial resource to fulfil the demand of the respondent. The appellant was subjected to torture by the respondent and his inmates. On 29.10.2012, the respondent and his mother insisted the appellant to bring a sum of Rs.50,000/- from her father otherwise they threatened to throw her from the said house and, finally she was driven out from the matrimonial home. Further, it has been stated that the respondent had an affair with one lady. Though in the memorandum of appeal the name has been disclosed, but for protecting the identity of that lady the name is withheld. As the appellant was annoyed for that relation, she was threatened further that she would be burnt alive if she raised any objection.

The appellant has admitted that on her complaint, Srinagar P.S. Case No.28 of 2012 under Section 498A/497/109/34 of the IPC was registered and on investigation, the chargesheet was submitted. Even the local Panchayet had tried to mitigate the matter, but for obstinate attitude of the respondent nothing could progress. Even the appellant informed the Tripura State Commission for Women to initiate the proceeding under Protection of Women from Domestic Violence Act, 2005. The said Commission referred the matter to the Protection Officer for taking steps to file a complaint under Section 12 of the said Act. Accordingly the complaint was filed and the Magistrate was pleased to direct the respondent to pay a sum of Rs.4,000/- as maintenance per month to the appellant.

The respondent appeared in that proceeding on 21.08.2015 and submitted a copy of the judgment dated 25.03.2015 whereby the marriage was dissolved. For the first time the appellant came to know that her husband filed a case on 16.09.2013 on false allegations. Later on, he obtained the ex parte decree by tweaking the service of notice. On scrutiny of the records, the appellant found from the order dated 29.01.2014, as passed by the Judge, Family Court that when summon was issued, it could not be served as she had 'refused' to receive the same. According to the appellant, she was away for one day for some urgent purposes viz. to consult a doctor for her children. Except that day, she was in her house. She has categorically stated:

"In fact, the present appellant did not refuse any notice even if it was sent by registered post and had it been offered to her she would have certainly received and contested the case. The poor appellant does not read any newspaper and the notice published in the newspaper did not come to her knowledge. She is a rustic lady residing in a remote village and never had the knowledge of the divorce case. From the judgment it appears that no notice was sent through the process of the court and it was sent by registered post. In the registered post whether correct address of the present appellant was given or not is not known to her. Had she got an opportunity to contest the case she could have successfully defended."

The appellant has submitted that the respondent had taken the advantage of his matrimonial misconduct as the proceeding was entirely beyond knowledge of the appellant.

We have heard Mr. K.N. Bhattacharjee, learned senior counsel assisted by Ms. S. Chakraborty, learned counsel appearing for the appellant. Despite notice, none has appeared for the respondent.

From the Registry's note dated 18.04.2016, it appears that the notice was properly served upon the sole respondent. The matter was listed on various occasions. At some point of time Mr. S. Das, learned counsel had appeared for the respondent. But on 27.06.2017 there was no representation for the respondent, Even today, when the matter has been taken for hearing there was no representation for the respondent. No alternative is, therefore, left to the court but to hear the appeal finally.

The solitary question falls for consideration in this appeal is whether the notice was properly served on the appellant. Since the averments made in the memorandum of appeal cannot be treated as the pleading, this court is unable to take cognizance of this pleading. But on overall assessment of the process of serving notice as reflected in the records, this court finds that the notice has not been served properly. Publication in the newspaper which does not have any adequate circulation in the area where the person to whom the notice is supposed to be served, it cannot be treated even as the substituted service of notice. Moreover, for substantial ends of justice, we are of the view that the appellant shall get a chance to participate in the proceeding which has been launched at the instance of the respondent herein.

Having observed thus, the impugned judgment dated 25.03.2015 stands set aside. The order dated 02.12.2014 passed in T.S.(Divorce)323 of 2013 declaring the proceeding ex parte is also interfered with and quashed. The matter is remanded to the Family Court for giving the appellant appropriate opportunity to contest the suit. The proceeding shall commence from the stage of filing of the written objection/statement and for this purpose the Family Court having received a copy of the order and the records, shall appoint a day for filing such objection/statement. The Family Court shall make an utmost endeavour so that the proceeding can be brought to its logical end as expeditiously as practicable. The notice shall be served to the appellant and the respondent by the Family Court for the said purpose. Since none appears for the respondent when the matter is heard, this court is not in a position to direct the parties to appear on a particular date to avoid further notice on the parties.

In the result, the appeal stands allowed.

Draw the decree accordingly and thereafter transmit the records.