THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA F.C.A.No.63 of 2010 JUDGMENT: (per the Hon’ble Sri Justice V. Eswaraiah) This appeal is directed against the order, dated 21-04-2009, passed in I.A.No.39 of 2009 in O.P.No.1220 of 2008 on the file of the Family Court, Visakhapatnam. The petitioner herein is the wife and the respondent herein is the husband. The husband filed O.P.No.1220 of 2008 on the file of the Family Court, Visakhapatnam, under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955, seeking divorce on the ground of cruelty and desertion. According to the husband, the summons sent by registered post with acknowledgement due were served on the wife and after service, the case was listed on 03-12-2008, on which date, as the wife was called absent, she was set ex-parte and the matter was posted to 04-12-2008 for the evidence of the husband, on which date, the affidavit in lieu of chief examination of the husband was filed and an ex-parte decree was passed on 04-12-2008. To set aside the said ex-part decree, dated 04-12-2008, the wife filed I.A.No.39 of 2009 in O.P.No.1220 of 2008 stating that the summons in the O.P. were not served on her and she has no knowledge about filing of the said case and in fact she gave complaint against her husband for harassing her and when the police brought her husband to the police station, he informed the police that divorce was granted in his favour. On coming to know the same, the wife enquired into the matter and came to know that she was set ex-parte and an ex-parte decree was passed in favour of her husband. It is stated that she neither received any summons nor was there any intimation and, therefore, she requests that a reasonable opportunity may be given to contest the matter. A counter has been filed by the husband stating that his wife is well aware about filing of the divorce petition. She refused to receive the summons sent by the court by registered post with acknowledgment due and on the other hand, she gave complaint to the police under Section 498-A IPC with a view to harassing him and his family members. The court below, vide its order, dated 21-04-2009, dismissed the said petition. Aggrieved thereby, the wife filed the present appeal. Heard both the counsel. A perusal of the impugned order goes to show that the learned Judge dismissed the said application on the ground that the endorsement on the registered cover clearly shows that the intimation was served on the wife and hence, it cannot be said that she did not receive the notice or intimation. Admittedly, the wife did not receive the notice, but there is an endorsement of the postal authorities that she refused to receive the notice. No doubt, refusal of the notice sent by the court through registered post is deemed to have been served. But, however, the fact remains that she did not receive the notice. But, however, we are of the opinion that filing of criminal case by the wife under Section 498-A IPC, after refusing to receive the notice, appears to be a counter blast to take action against her husband and family members. It has to be seen that in cases, where the wife seeks to have a conjugal life with her husband, keeping in view of the welfare of her two children and submits that she was not cruel towards her husband and never deserted her husband, a reasonable opportunity can be given to contest the matter. Having regard to the facts and circumstances of the case, we are of the opinion that it is just and proper to give a reasonable opportunity to the wife enabling her to contest the O.P. and at the same time, we are also of the opinion that filing of criminal case under Section 498-A IPC would lead to strained relationship between the wife and husband. However, the learned counsel appearing for the wife fairly submits that the wife will withdraw the criminal case filed against her husband under Section 498-A IPC. Accordingly, we allow the appeal setting aside the order, dated 21-04-2009, passed in I.A.No.39 of 2009 in O.P.No.1220 of 2008 on the file of the Family Court, Visakhapatnam and consequently, I.A.No.39 of 2009 stands allowed and O.P.No.1220 of 2008 shall stand restored to its file, subject to the condition of the wife withdrawing the criminal case filed against her husband under Section 498-A IPC. There shall be no order as to costs. ________________ V.ESWARAIAH, J _________________ B.N.RAO NALLA, J Dated: 30-03-2010 Note: Issue C.C. in one week (B/o) Prv