KRISHAN Vs. SUMITRA

JUDGEMENT

(1.) THIS appeal tinder Section 28 of the Hindu Marriage Act has been filed by the husband against the judgment and decree dated 22. 2. 1992 passed by III Additional District Judge, Ujjain rejecting his petition/suit for grant of divorce.

(2.) ADMITTEDLY, the marriage between the parties took place on 19. 4. 1974 and from July, 1976, the respondent-wife is residing separately. The petition for divorce was filed on the ground of cruelty, desertion and adultery. The respondent-wife was ex parte before the Court below as the notice was refused by her. Even then the Trial Court has dismissed husband's petition as he failed to prove the allegations levelled against the respondent-wife. This Court also tried for reconciliation but it failed and the Court has recorded that there is no possibility of any reconciliation between the parties.

(3.) LEARNED Counsel for the appellant submitted that when there was no possibility for reconciliation between the parties, the Court below ought to have granted a decree for divorce. In support of his contentions he has placed reliance on a Division Bench decision in the case of Rajendra Agrawal v. Smt. Sharda Devi Agrawal, 1992 JLJ 289, in which it has been held that if there is no possibility for any reconciliation, the Court should grant a decree for divorce. In reply, the submission of the learned Counsel for the respondent is that in this case the Trial Court has not followed the mandatory provisions of law for recording refusal of summons by the respondent-defendant. Mr. Agrawal has taken a technical objection that though the summonses were refused by the respondent-defendant, but the Court below has not applied the provisions of Rules 17 and 19 of Order 5, C. P. C. , according to which in case of refusal of service of summons, the same has to be affixed in the presence of the witnesses and a report has to be endorsed by the Process Server in that regard on affidavit. It is also to be reported by the Process Server that by whom the house of the defendant was identified and in whose presence the copy of summon was affixed. On the refusal to receive the summons by the defendant, a further inquiry by the Trial Court was necessary Under Rule 19 of Order 5 where summons is returned Under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings and may make such further inquiry in the matter as it thinks fit, and shall either declare that the summons has been duly served or order such service as it thinks fit. Since the Court below has not applied the aforesaid mandatory provisions, the service by refusal cannot be held to be proper under the law. The Counsel for the respondent further submitted that since there is no valid service on the defendant, the Trial Court has wrongly proceeded ex parte against the respondent.