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Dr. Tavindar Kaur @ Sachi W/O Dr. … vs Dr. Harinder Singh S/O Shri … on 19 August, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Miscellaneous Appeal No.3893/2019

Dr. Tavindar Kaur @ Sachi W/o Dr. Hariender Singh, D/o Shri
Surinder Singh, Aged About 30 Years, B/c Sikh, R/o Surindra
Enterprises Main Road, Near Babulal Rungta Genral Store, Brijraj
Nagar, Jharsugudha, Orissa
—-Appellant
Versus
Dr. Harinder Singh S/o Shri Jagdish Singh, Aged About 30 Years,
B/c Sikh, R/o Plot No. 23, Vidhut Nagar-A, Jaipur (Rajasthan)
—-Respondent

For Appellant(s) : Shri Akash Gupta for
Shri B.L. Agarwal
For Respondent(s) : Shri P.S. Sharma
Shri Dharmendra Joshi

HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Order

19/08/2019

BY THE COURT : (PER HON’BLE DHADDHA, J.)

1.0 Issue notice to respondent.

1.1 Shri P.S. Sharma, learned counsel accepts notice on

behalf of the respondent.

1.2 With the consent of both the parties, this appeal is

heard finally.

2. This appeal has been filed by appellant Dr. Tavindar

Kaur @ Sachi against the order of the learned Family Court No.1,

Jaipur passed on 19.7.2019 whereby the learned Family Court

allowed Divorce Petition No.3308/2019 (461/2019) filed u/s 13(1)

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(ia)(ib) and 7(1)(a) of the SectionHindu Marriage Act, 1955 (for short

“the Act”).

3. Brief facts giving rise to this appeal are that the

marriage between the parties was solemnized on 29.3.2015 at

Raipur (Chhatisgarh) as per Hindu rites and customs. The

appellant and respondent, both are doctors by profession. Both

the parties are Hindus. The behaviour of the appellant wife was

cruel from the very day towards the respondent husband. The

appellant wife always denied to the husband from indulging in

physical relationship. Never the appellant wife fulfilled the

enjoyment of her matrimonial life and treated her husband with

cruelty. So, the respondent husband filed divorce petition before

the learned Family Court for decree of divorce on the ground of

cruelty on 16.4.2019. The learned Family Court issued notice to

the appellant wife. Service of notices was deemed sufficient by

affixing (Chaspandgi) on 29.4.2019. But she did not present

herself. The learned Family Court decided to proceed ex parte

proceeding on 25.6.2019. The learned Family Court allowed the

petition vide impugned judgment and decree on 19.7.2019 and

dissolved the marriage.

4.0 Learned counsel for the appellant submitted that the

impugned judgment and decree dated 19.7.2019 is illegal,

perverse and against the material available on record. Learned

counsel for the appellant submitted that the appellant wife

underwent kidney transplantation at Delhi on 1.9.2018 and her

mother was the donor. On 29.04.2019, the appellant was in Delhi

for her medical treatment. The process server also stated in its

report that the appellant was out of city for her medical treatment,

so he affixed the summon. It was also submitted that the learned

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Family Court had not ordered the process server to serve summon

by Chaspandgi. The appellant was out of city temporarily for her

medical treatment. So, the court should have approached liberally

and made fresh attempt for service.

4.1 Learned counsel for the appellant submitted that the

learned Family Court had committed an error for considering the

fact that the address of the witness by whom the house was

identified and before whom the summons were affixed was not

mentioned by the process sever. In absence of the details of the

witness, it is impossible to produce the witness in the court to

establish the real facts of the case. So, the appeal be allowed and

the ex parte judgment and decree dated 19.7.2019 be set aside.

5. Learned counsel for the respondent supported the

judgment and decree dated 19.7.2019. He submitted that the

learned Family Court has passed the order in its right perspective.

He submitted that the learned Family Court had not committed

any error in passing the order. So, the appeal be dismissed.

6. We have given our thoughtful consideration to the

arguments advanced by the learned counsel for the parties,

perused the impugned orders and the material available on

record.

7. The process server in its report clearly mentioned that

the appellant was out of city for her medical treatment. The

learned Family Court had not ordered the process server to affix

the summon of the appellant. In the matrimonial disputes, the

court should adopt liberal view in place of hypertechnique

approach. It is settled principle of law that rights of the parties are

never allowed to be defeated only technicalities. The appellant was

out of station for her medical treatment, so summon was not

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personally served upon her. Therefore, the order of the learned

Family Court to proceed ex parte against the appellant, is not

sustainable.

8. In the result, the appeal is allowed. Impugned order is

set aside. Matter is remanded back to the Family Court No.1,

Jaipur. The parties are directed to appear before the Family Court

on 18.09.2019. The appellant-wife shall file her written

statement/reply to the petition filed by the respondent-husband

within a period of four weeks from today. The Family Court shall

thereafter grant three months time to the appellant to adduce her

evidence and thereafter maximum one month’s time shall be

granted to the respondent-husband to adduce evidence in

rebuttal. The Family Court shall make an endeavour to finally

decide the main petition itself within a period of six months from

the date next fixed before it.

(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J

RAJ KUMAR CHAUHAN /17/S85

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