FIRST APPEAL No. 84 OF 2004 Against the judgment dated 30.08.2003 and the decree signed on 08.09.2003 by Sri Rajendra Sinha, 2nd Additional District and Sessions Judge, Madhubani in Matrimonial Case No. 15 of 2003. NEELAM DEVI & ANR. ………. Opposite Parties- Appellants Versus DEVENDRA KUMAR MANDAL ……… Petitioner-Respondent ******** For the Appellants : Mr. S.D. Sanjay, Advocate For the Respondent : Mr. Devendra Kumar Sinha, Sr. Advocate Mr. Rikesh Kumar, Advocate Mr. Anil Kumar No. I, Advocate Dated : 4th day of January, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T This First Appeal has been filed by the wife and another against the judgment and decree dated 30.8.2003 passed by Sri Rajendra Sinha, the learned 2nd Additional District and Sessions Judge, Madhubani in matrimonial case no. 15 of 2003 allowing the application filed by the husband-respondent under Section 13 of the Hindu Marriage Act and dissolving the marriage ex-parte. (2) The husband-respondent filed the said application under Section 13 of the Hindu Marriage Act alleging that Neelam Devi, appellant no.1 was married with him on 27.6.1988. Duragaman was Mungeshwar Sahoo, J. 2 performed one year after the marriage. Then, they started living together happily. A son and a daughter were born to them. Since March 1999, the wife, Neelam Devi begun to flee away to her Naihar without consent of the husband and started treating the petitioner with cruelty and also she behaved with cruelty towards the family members of the petitioner. She also started refusing co-habitation with the petitioner from March, 1999. The petitioner further alleged that appellant no.2, Ravi Kumar was always visiting their house and was always talking with the petitioner’s wife. Petitioner learnt that his wife was living in adultery with Ravi Kumar, so, he requested his wife to amend her character but to no effect. Once, she gave poison to the petitioner but by the grace of god, his life was saved. His wife used to beat the children with cruelty. Then, he brought her to the residence at Manorama Auto Service Centre but there also, she used to flee away. On 13.3.2003, when the petitioner returned to residence at about 7 P.M., he found the appellant no.2, Ravi Kumar in compromising condition with his wife, appellant no.1. (3) The learned Court below found that despite service of notice by way of refusal on registered post, the appellants did not appear and therefore, the case was decided ex-parte. (4) The petitioner-respondent examined 3 witnesses. The learned Court below found that the case is not a case of desertion. The learned Court below further found that the opposite party no.1 was leading adulterous life with appellant no.2. (5) Mr. S.D.Sanjay, the learned counsel appearing on behalf of the appellant submitted that the impugned judgment and decree 3 is vitiated because of the fact that the husband obtained the decree for dissolution of marriage hastily by obtaining fraudulent report regarding service of notice. The learned counsel further submitted that the report given by the Process Server is collusive one which would be evident from the report itself and moreover, the address of the appellant was wrongly mentioned by the husband. The learned counsel further submitted that the learned Court below did not care even to see as to why in spite of service of notice, the wife is not appearing and the learned Court below hastily disposed of the matrimonial suit. The learned counsel further submitted that the learned Court below has not appreciated the evidences adduced on behalf of the husband properly and relied upon the evidences as if, they are gospel truth without examining the circumstances and probabilities as none of the witnesses even the petitioner repose any confidence. The learned counsel also pressed the I.A. No.4088 of 2008 filed on 15.7.2008 on behalf of the appellant no.1, Neelam Devi under Section 24 and 25 of the Hindu Marriage Act claiming 1/3rd of the total income of Rs.2,85,000 as monthly maintenance. A counter-affidavit has been filed on behalf of the husband-respondent on 7.12.2010. Another Interlocutory Application being I.A. No.9839 of 2010 has also been filed praying therein to direct the husband to pay arrear maintenance. So far I.A. No.4087 of 2008 is concerned, the learned counsel for the appellants submitted that he is not pressing that application at present. It appears that the application has been filed under Section 26 of the Hindu Marriage Act for custody of the children. The learned counsel submitted that the son and daughter have now attained majority. Accordingly, this I.A. No.4087 of 2008 is rejected as not pressed. 4 (6) The learned senior counsel, Mr. Devendra Kumar Sinha appearing on behalf of the husband submitted that the appellant cannot be permitted to say in this First Appeal that notice was not served on her because she had not filed application under Order 9 Rule 13 C.P.C. for setting aside the impugned judgment and decree on the ground that no notice was served on her. According to the learned counsel, the appellant can only assail the impugned judgment on merit and because, the evidences adduced on behalf of the petitioner-husband are ex-parte and there is no contrary evidence to the said oral evidences, the Court had no option but to accept and rely upon said oral evidences and the learned Court below has rightly relied upon. On these grounds, the learned counsel submitted that the appeal is liable to be dismissed. (7) In view of the above rival contentions of the parties, the point arises for consideration is as to “whether the impugned judgment and decree are sustainable in the eye of law?” (8) The husband-respondent had filed the application under Section 13 for dissolution of marriage. From perusal of the Lower Court record, it appears that the notices were accepted to have been served validly on the wife on refusal. The learned Court below did not try to see as to whether the notices have been properly served and if properly served, why the wife is not appearing? (9) In a decision reported in A.I.R. 2005 Gujarat 279(Kamini Ben Mangal Das Sah v. Bharat Bhai Rasik Lal Sah), a Division Bench of the Gujarat High Court in similarly situated case, held at paragraph 6 that it was the duty of the learned Judge to first make an 5 attempt of re-conciliation between the parties. It was the duty of learned Judge to see why the wife was not remaining present even though, the summon was duly served upon her. But it seems that the learned Judge was more interested in disposal of the cases rather than doing justice to the parties. Therefore, in undue haste, she decided the matter at the earliest i.e. on 31st July, 2002 as if, the heaven was going to fall, which was not at all proper for any Judge to dispose of the cases more particularly such type of cases in this manner. This type of order sometime creates irreversible situation. Therefore, it should be avoided as far as possible. In that case also, it appears that it was ex-parte decree and against ex-parte decree, First Appeal was filed. In this present case also, the application for dissolution of marriage was filed on 3.4.2003 and the judgment was passed on 30th of August, 2003 within five months, that too, accepting the service of notice on refusal. (10) In similarly situated case, a Division Bench of the Jharkhand High Court in the case of (Salini Keshri v. Mintu Keshri), A.I.R. 2010 Jharkhand, Page 113, the ex-parte judgment and decree was set aside on the ground that the notice was not properly served on the wife. (11) From perusal of the Lower Court record, it appears that notices were also sent in ordinary process. From the Process Server report, it appears that the said report was obtained in collusion. No affidavit of the Process Server was filed and the word used by him in the report appears to be collusive. In such circumstances, only on the basis of refusal, endorsement made on the registered post, it should not have been accepted particularly when this is a matrimonial suit. In such type of 6 cases, when the life of women is involved, the duty of the Court is more onerous. (12) From perusal of the impugned judgment also, it appears that mere oral statements of the witnesses have been accepted as gospel truth without discussing as to whether, in fact, those statements are reliable statements. The Courts are not expected to act like a post office and rely upon the evidences without examining their reliability although, the evidences are ex-parte. For example, in this case, the husband has stated in his evidence that when he returned from Madhubani to his Room at Manorama Auto Service Centre in the evening at 7 P.M., he found Ravi Kumar and his wife in compromising position. Whether this evidence is acceptable at all because it was a public place and the time is at 7 P.M. How the husband saw them because these types of act are done generally in secret places. The employees were there. The husband is warning the wife after these occurrences that you amend your character. “Whether these evidences adduced by the husband are at all believable and reliable?” All these matters have not been discussed at all and the learned Court below stated that the husband has stated so and so and therefore, proved the case. It appears that in fact, the learned Court below was in hurry to dispose of the cases rather than doing justice to the parties. (13) In view of my above discussion, the impugned judgment and decree are unsustainable in the eye of law. (14) In the result, this First Appeal is allowed and the impugned judgment and decree are set aside. The matter is remanded 7 back to the Family Court of the said District to decide the matter afresh according to law. The husband is directed to pay a cost of Rs.10,000 to the wife. He shall deposit the same in the Court below within three months from today and on his so depositing, the same shall be paid to the wife by the Court below. If it is not deposited within the said period, the Court below shall pass appropriate steps/order for realisation including coercive steps. (15) So far I.A. No.4088 of 2008 and I.A. No.9839 of 2010 are concerned, there is no material and evidence before this Court regarding the status of the parties. Since the case is remanded back to the Court below, the appellants, if so advised, pray for the same relief before the Court below and if such application is filed before the Court below, the learned Court below shall dispose of the same according to law. Accordingly, these Interlocutory Applications filed before this Court are therefore, disposed of. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 4th January, 2011 Saurabh/A.F.R.