NARMADA BEN Vs. PRAVEEN KUMAR

JUDGEMENT

(1.) This appeal filed by the appellant under Section 19 of the Family Courts Act, 1984 ('the Act of 1984'), is directed against order dated 6.3.2019 passed by the Family Court, Sirohi, whereby an application preferred by the appellant under Order IX Rule 13 read with Section 151 C.P.C., accompanied by an application under Section 5 of the Limitation Act, for setting aside the ex-parte decree dated 15.1.2018 passed in Civil Original Case No. 92/17, has been dismissed.

(2.) The facts relevant are that the respondent filed an application under Section 13 of the Hindu Marriage Act, 1955 ('the Act') against the appellant for dissolution of marriage on the ground of cruelty. The notice of the application issued by the Family Court was sent to the appellant by registered post, which was received back with endorsement of refusal by the appellant. Accordingly, the Family Court treating the service complete, proceeded against the appellant ex-parte. The statements of the respondent Praveen Kumar (AW1) and his witnesses Geri Devi (AW2) and Akha Ram (AW3) were recorded. After due consideration, on the basis of uncontroverted evidence, the Family Court allowed the application vide judgment dated 15.1.2018 and the marriage between the parties was dissolved by a decree of divorce.

(3.) The appellant preferred an application under Order IX Rule 13 read with Section 151 C.P.C., for setting aside the ex-parte decree stating that the notice alleged to have been sent by registered post was never offered to her and she never declined to accept the same. It was contended that the respondent had not complied with order dated 2.6.2017 passed by the Family Court directing service of the notice upon the appellant individually as also by registered post. Learned Counsel submitted that as per the provisions of Rule 11 of the Rajasthan (High Court) Family Courts Rules, 1990 ('the Rules'), all the processes are required to be served in the manner prescribed in the Code of Civil Procedure, 1908, except in proceedings under Chapter IX of Code of Criminal Procedure, 1973. That apart, by virtue of proviso to Rule 11, notices of the petition arising out of matrimonial law are required to be served personally on the respondent except when the Court under exceptional circumstances orders otherwise and thus, the notice could not have been sent to the appellant straightaway by the registered post without there being an order passed by the Family Court in this regard. Learned Counsel submitted that the envelope containing the notice received back does not even bear the signature of the postman and thus, apparently, the respondent managed the return of the notice with an endorsement of "œrefusal " without tendering the same to the appellant. Learned Counsel submitted that the Family Court without examining the matter in its entirety and objectivity has seriously erred in rejecting the application preferred by the appellant for setting aside the ex-parte decree.