Shilpa Prashanth vs Prashanth B. Lalsangi

Rathnakala, J.

This is a wife''s appeal against the order dated 24th February 2014 passed in Misc. 38/2012 by the VI Additional Principal Judge, Family Court at Bangalore, in dismissing the application filed under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure.

Briefly stated, the parties herein are legally wedded couple having married as per the Hindu customs. On a petition filed by the husband in M.C. No. 1621/2011, an ex parte decree of divorce was granted in his favour on 11.1.2012. The wife filed a Miscellaneous Petition under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure, seeking to set aside the ex parte decree passed in M.C. No. 1621/2011.

The husband contested the petition; enquiry was held and after giving audience to the parties, the learned Family Court Judge dismissed the said Miscellaneous Petition.

Smt. Kavitha H.C., learned Counsel appearing for the appellant submits, in the original case M.C. No. 1621/2011, wife was not served with court notice. As verified from the court records, the RPAD cover had returned with endorsement "door closed" on 9.8.2011, thereafter, though fresh notice was ordered by way of RPAD, without verifying whether or not the wife was served, the court below held that the service is sufficient; placed her ex parte and proceeded with the case. The Court though noticed that the wife has not signed the acknowledgement, but signed by some other person, declined to set aside the ex parte Decree. She is a resident of Dharwad. The decree obtained by the husband behind her back is nullity and same is liable to be set aside by allowing the impugned order passed on her application filed under Order IX Rule 13 of CPC and also the decree passed in M.C. No. 1621/2011 dated 11.1.2012.

The respondent though served unrepresented.

In the above circumstances, the sole point that arises for our consideration is:

"Whether the wife has established that she had no notice of the petition filed by her husband in M.C. No. 1621/2011?"

The certified copy of the order sheet of M.C. No. 1621/2011 filed by the husband under Section 13(1)(1-a)(1-b) and (1-A)(iii) of the Act is borne on record as having been marked as Ex. R1 before the trial court. As per Ex. R1, at the first instance, on 31.5.2011 notice was ordered to the respondent/wife by way of RPAD returnable by 4.8.2011. On the office note that the house was locked, again notice was ordered by way of RPAD on the next hearing date of 4.8.2011. Fresh notice by way of RPAD was ordered and the office did not put a note as to whether the RPAD was served or not.

The learned District Judge without recording as to whether the notice was served or not, merely recorded that respondent absent and service held sufficient. By placing the wife ex parte , he proceeded with the case.

During the enquiry held in respect of the application moved by the wife under Order IX Rule 11 of CPC, the husband had produced Ex. R2/the certified copy of the postal acknowledgement allegedly bearing the signature of the wife (for service of notice of Divorce Petition through registered post). During cross-examination, he himself was not able to assert that the said signature is that of his wife. He expressed his ignorance about the signature of his wife. He admitted that the alleged signature on the postal acknowledgement is different from that of the signature of the wife borne in the vakalath and also the petition filed by her under Order IX Rule 11 CPC. The learned Family Court Judge observed that the legal notice issued by the husband prior to institution of the petition was served on her at the address mentioned in the court notice. Relying on the postal endorsement that the wife has signed the postal acknowledgement, has dismissed the petition filed by the wife.

Here is the wife, who is persistently contending that the RPAD notice in M.C. No. 1621/2011 is not served on her. It is doubtful that the Presiding Officer of the Court, who was dealing with M.C. No. 1621/2011, had personally verified the postal acknowledgement and convinced that the notice is served on the wife before placing her ex parte . Under the circumstance, we uphold the contention of the wife that she was not served with the notice issued by way of RPAD in M.C. No. 1621/2011. The husband, who is shown to be a resident of Bangalore, though served with notice has not appeared to contest this appeal.

Under these circumstances, we are of the considered opinion, Misc. 38/2012 filed by the wife requires to be allowed thereby the ex parte judgment and decree passed against the wife dissolving her marriage with her husband (petitioner in M.C. No. 1621/2011) shall be set aside affording opportunity to the wife to contest the petition.

Accordingly, the appeal is allowed.

The impugned order dated 24th February 2014 passed in Misc. 38/2012 by the VI Additional Principal Judge, Family Court at Bangalore, is hereby set aside. The Misc. 38/2012 filed by the appellant under Order IX Rule 13 read with Section 151 of CPC is allowed.

Consequently, the ex parte decree passed in M.C. No. 1621/2011 filed by the husband is set aside. The case is restored.

The matter is remanded to the VI Additional Principal Judge, Family Court, Bangalore, to give an opportunity to the appellant/wife to contest the case, if necessary application is moved by her. The case shall be disposed of in accordance with law after due opportunity to both the parties.

The parties without waiting for the notice from the court are directed to appear before the jurisdictional Court on 1st July 2015 at 11.00 a.m. either personally or through their Counsel.

Office is directed to return the entire original records to the jurisdictional Court, forthwith.

No order as to costs.