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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