Sunday, 8 May 2016

Service of summon by publication in newspaper whether proper service

 It is well settled that once a summon is published in a news paper having wide circulation, the respondent cannot be heard to complain that he was not aware of such publication and it is immaterial whether the respondent does subscribe or read the newspaper or otherwise. (See SUNIL PODDAR AND OTHERS v. UNION BANK OF INDIA MANU/SC/0322/2008 : (2008) 2 SCC 326). Records disclose that Court notices have been published in leading newspapers. Therefore, in our view, the service of notice was sufficient. 
Equivalent Citation: 2016(2) AKR 53, 2015(6)KarLJ88,AIR 2016(NOC)331kar
MFA No. 7942/2013 (FC)
Decided On: 17.08.2015
R. Smitha Vs.  R. Umashankar
Hon'ble Judges/Coram:N.K. Patil and P.S. Dinesh Kumar, JJ.

1. This appeal is preferred by a lady, whose petition seeking Divorce filed under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 has been dismissed by Judgment and Order dated 1.8.2013 in M.C. No. 3327/2012 on the file of I Addl. Principal Judge, Family Court, Bengaluru.
2. Briefly stated the facts of the case are the marriage between the appellant and the respondent was solemnized on 28.5.2003. Initially, appellant stayed in her marital home with her husband who is a businessman at Hassan. Out of the wed-lock, the couple have a son born on 31.3.2000. Subsequently, the couple shifted to Mysore and thereafter to Bengaluru. After coming to Bengaluru, respondent was taken to vices such as consuming alcohol, gambling etc. As a consequence thereof, the respondent started harassing the petitioner compelling her to get money from her parents. Though the appellant's parents gave some money, the respondent not being satisfied with the quantum continued to harass the appellant by inflicting both mental and physical cruelty. On 5.12.2009, the respondent left the house and did not return and thus deserted the appellant. Efforts made by appellant to find and contact the respondent were in vain. After waiting for sufficient period, the appellant filed the instant petition praying for grant of Divorce. The said petition having been dismissed, the appellant has preferred this appeal.
3. We have heard Sri Nitish K.N. for Sri K.V. Narasimhan, learned Counsel for the appellant. The service of notice to the respondent-husband has been held sufficient. Neither he has appeared in person nor there is any representation on his behalf in this Court.
4. Learned Counsel appearing for the appellant vehemently submits that the Court below erred in dismissing the petition on the ground that the appellant has not proved the nature of ill treatment, harassment and its impact on her with cogent evidence. He submits that the said reasoning of Family Court is contrary to the record and particularly the testimony of both PWs. 1 and 2. He further submits that the very fact that the respondent has deserted the appellant from 5.12.2009 and failed to look after her by itself amounts to infliction of cruelty. In addition, the testimony of PW.2, who is an independent witness strongly corroborates the case of the appellant. In such circumstances, the Court below was not justified in dismissing the petition and accordingly prays for allowing this appeal.
5. We have carefully considered the submissions made by the learned Counsel for the appellant and perused the material papers and records maintained by the trial Court.
6. Ex.P1 is the marriage invitation. Ex.P3 is the original passbook issued by Canara Bank in respect of an account maintained by the respondent bearing No. 2850101002940 with Kengeri Satellite Town Branch. The address of the respondent mentioned in the Passbook matches with the address of the appellant herein. The last transaction reflecting in the said passbook is dated 22.9.2008. Ex.P4 is the Motor Vehicle Taxation Card of a vehicle bearing No. KA-41 6779 owned by the respondent. In this document also, the address of the respondent is the same as that of the appellant.
7. The order sheet maintained by the trial Court discloses that the Notice issued to the respondent both through Court and Registered Post had returned unserved. The appellant's application (IA-2) for substituted service was allowed on 2.4.2013 and a notice was published in 'Praja Vani' a leading Kannada daily in its Edition dated 16.3.2013 mentioning the date of hearing as 2.4.2013. Subsequently, another application (IA-4) was filed to take out one more notice in 'Jana Mitra' Newspaper published from Hassan and Court notice has been published in its edition dated 15.5.2013. Despite publication of notice in the news papers, the respondent did not appear before trial Court and vide order dated 19.6.2013, he was placed ex-parte.
8. To prove her case before the trial Court, the appellant has got herself examined as PW.1, a neighbour by name Basavaraj as PW.2 and got 6 documents marked. In her examination-in-chief filed by way of an affidavit, she has reiterated the contents of the petition. PW.2 in his evidence has stated thus in his evidence:
"1. I am the resident of above address. Myself and my family members are residing in the aforestated Huliyappa building. I know the petitioner Smt. R. Smitha @ Thejaswini and Respondent Sri R. Umashankar @ Prasanna. They are wife and husband. In the year 2007, the petitioner and respondent occupied a premises in Huliyappa building mentioned above, as tenants.
2. After few days, we noticed that the Respondent was addicted to bad habits like consuming alcohol, gambling etc., and was harassing the petitioner and even he used to assault her. Our efforts to bring good sense into his conduct was not fruitful.
3. In the month of December, 2009, the Respondent willfully, deliberately and without sufficient cause deserted the petitioner and since then he has not turned up to lead married life with the petitioner."
9. Ex.P1 (marriage invitation card) discloses that the respondent is second son of one Sri S.M. Rajasundar, who was residing in Javenahalli Matt Road, Lakshmipuram Extension, Hassan at the time of marriage. Ex.P3 - Bank Passbook evidences that the respondent No. 1 resided with the appellant in Bengaluru from March 2008 to September 2008. The Motor Vehicle Taxation Card - Ex.P4 issued on 14.10.2008 also corroborates that the respondent was residing with the appellant.
10. In the claim petition, it is averred that the respondent left the house deserting the appellant on 5.12.2009. Notices have been issued in the Kannada leading daily newspaper 'Praja Vani' on 16.3.2013 and in a local newspaper circulated in Hassan District on 15.5.2013. Notice of this appeal has also been published in a leading Kannada daily "Samyuktha Karnataka" on 27.6.2015. The respondent has remained ex-parte in the proceedings before the trial Court as also before this Court. As per the averments contained in the petition before the trial Court, the agony of the appellant began from and after the couple shifted to Bengaluru some time between 2004 and 2008 and got compounded with exit of respondent from the house on 5.12.2009. The appellant has presented the petition for Divorce on 6.9.2012. Though the respondent - husband has remained ex-parte despite publication of Court Notices in two newspapers, the trial Court for reasons recorded has rejected the petition. In the opinion of the trial Court, though the appellant and PW.2 have stated in their evidence that the respondent was subjecting the appellant to cruelty, the same is not sufficient evidence to allow the petition and grant a decree of Divorce. The trial Court has further reasoned that if the appellant was being harassed physically then there ought to have been some documentary evidence to show that the cruelty or harassment was unbearable. Adverting to the mental cruelty, the trial Court has opined that the allegations made therein are not sufficient to come to the conclusion that the mental cruelty was to such an extent that it became unbearable for her to live with the respondent. The Court below has held that although the word 'Cruelty' has not been defined in the Act, the appellant has not proved the nature of cruel treatment and its impact on her with sufficient evidence. On these reasonings, the petition filed by the appellant has been dismissed.
11. More than five years have elapsed since the date on which the husband of the appellant has deserted her. Presentation of a petition before the trial Court, participation in the proceedings and presentation of an appeal before this Court against the order of dismissal passed by the trial Court, prima-facie establishes that the appellant has been making serious efforts to get out of the wed lock. But there is stoic silence on the part of the respondent - husband to the summons to appear before the trial Court as also before this Court. It is well settled that once a summon is published in a news paper having wide circulation, the respondent cannot be heard to complain that he was not aware of such publication and it is immaterial whether the respondent does subscribe or read the newspaper or otherwise. (See SUNIL PODDAR AND OTHERS v. UNION BANK OF INDIA MANU/SC/0322/2008 : (2008) 2 SCC 326). Records disclose that Court notices have been published in leading newspapers. Therefore, in our view, the service of notice was sufficient. The indifferent attitude on the part of respondent-husband has driven the lady to knock and wait at the doors of this Court to relieve her from institutional bond of marriage.
12. We are living in an era of global village. There is an outcry for speedy justice and liberty. In our considered view, the finding of the trial Court that the appellant has not proved infliction of cruelty is perverse. We say so because the petition for Divorce was filed after a lapse of about 3 years from the date on which the respondent is said to have left home. An immediate neighbour has deposed in clear and unequivocal terms in his evidence that the respondent was taken to bad habits and assaulting the appellant. There is nothing contrary on record to impeach his testimony. On the other hand, the conduct on the part of the respondent in suddenly disappearing from the house and remaining indifferent to the summons issued by the trial Court as also this Court compels us to draw an adverse inference against him. In our view, this conduct on the part of the respondent has caused immense mental agony to the appellant and can be safely bracketed within the meaning of 'mental cruelty'.
13. Thus, physical cruelty inflicted upon the appellant is proved by her testimony and also that of a neighbour who is an independent witness. Desertion is proved by sudden disappearance of respondent from home. Further, indifferent and defiant position taken by the respondent towards Court summons has strengthened the case of the appellant.
14. At this juncture, we may usefully refer to a judgment of the Hon'ble Supreme Court in the case of NAVEEN KOHLI v. NEELU KOHLI reported in MANU/SC/1387/2006 : 2006(4) SCC 558, the relevant portion of which reads as follows:
"72. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.
73. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented with concrete instances of human behaviour as they bring the institution of marriage into disrepute.
74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.
77. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems than are sought to be solved.
78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom."
15. In our considered view the ratio of above judgment of the Hon'ble Supreme Court is squarely applicable to the facts of the case on hand. Therefore, this appeal merits consideration and deserves to be allowed.
16. In the result, we pass the following:--
(i) Appeal stands allowed;
(ii) Judgment and Order dated 1.8.2013 in M.C. No. 3327/2012 on the file of I Addl. Principal Judge, Family Court, Bengaluru is set aside;
(iii) The marriage solemnized between the appellant and the respondent solemnized on 28.5.2003 stands dissolved.
No costs.
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