High Court of Bombay

Sachin Vs. Vrushali

MANU/MH/2059/2018

10.07.2018

Family

Before passing order of service of summons, it was duty of Court to examine Process Serving Officer/Bailiff, if his report is not on affidavit

The Appellant-husband ('the Respondent') against whom decree of dissolution of marriage has been passed in the petition filed by the Respondent-wife ('the Petitioner') by the Principal Judge, Family Court, on the ground of cruelty and desertion under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, has preferred present appeal being aggrieved by the said decree. Respondent/husband submitted that, the learned Judge of the Family Court erred in passing ex-parte decree of divorce. The only point that arises for determination is whether the learned Judge of the Family Court, Aurangabad erred in passing ex-parte decree by holding service of summons on respondent/husband, as proper and legal.

In the present case, admittedly, no vakalatnama has been filed on behalf of Respondent/husband in the petition before the Judge, Family Court so as to prove the service of summons on the Respondent naturally therefore, the Petitioner will have to show that, the summons was served on the Respondent in the manner provided by the Code of Civil Procedure in the light of second part of Rule 19 of the Family Court Rules, 1988 by the affidavit of the Bailiff and of the person who attended Bailiff for the purpose of identification at the time of service. Admittedly, in the present case Bailiff has not filed affidavit regarding service of summons on the Respondent and he has only given report dated 30th June, 2017 on summons. So also, there is no affidavit of person who attended the Bailiff for the purpose of identification at the time of service of summons on the Respondent. Thus, it is obvious that there is no compliance of Rule 19 of the Family Court Rules.

In the circumstances, in fact, before passing the order of service of summons on the Respondent-husband, as observed by the Division Bench in the case of Deepali vs. Pratap, it was the duty of the court to examine Process Serving Officer/Bailiff, if his report is not on affidavit. The order regarding service of summons on the Respondent/husband passed by the learned Judge of the Family Court to proceed ex-parte against the respondent is not proper as there was no proper service of summons on him. Therefore, impugned ex-parte decree of dissolution of marriage passed on the basis of said ex-parte order is against principles of natural justice as no proper opportunity was accorded to the respondent/husband and the same cannot be sustained on the said ground alone. The impugned decree is set aside and petition remanded back to the family Court for deciding the same afresh with certain directions. The appeal is allowed.

Relevant

Deepali vs. Pratap MANU/MH/2475/2014

Tags : Service Summons Ex-parte decree Validity

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