(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) Admit. Ms.Parikh, learned Counsel for the respondent waives service of notice of Admission. With the consent of the learned Counsel appearing for both the sides, the matter is finally heard today.
The present appeal is directed against the ex parte judgement and decree passed by the Family Court dated 15.7.2011 in Family Suit No.217 of 2010, whereby the marriage between the appellant and the respondent is dissolved.
The relevant facts are that the original plaintiff - respondent herein filed the suit for dissolution of the marriage and decree of divorce. He alleged in the plaint that on 17.2.2001 the marriage was solemnized and one daughter is also born and the ground of desertion was alleged and the decree of dissolution of marriage was prayed. It appears that the Family Court proceeded ex parte on the ground that summons was duly served, but the appellant did not remain present for defending the suit and thereafter based on the affidavit, ex parte decree has been passed, which is challenged in the present proceedings.
We have heard Ms.Muskana Gogia, learned Counsel for the appellant and Ms.Parikh, learned Counsel for the respondent.
The learned Counsel appearing for the respondent submitted that as the dispute about address at which the service of summons is raised, the respondent - original plaintiff has no objection, if the matter is remanded to the Family Court.
The aforesaid aspect, if considered with the report of the bailiff on pages 58 and 59 shows that the summons is served upon the Aunty of the appellant and it has not been served upon the appellant. There is dispute about the address at which the summons was served. The appellant contends that there is no healthy relation with the uncle and aunty of the appellant, whereas the respondent submits that the same address was shown in the proceedings initiated before the Rajkot Court of Criminal Case No.336 of 2009. Be that as it may, we find that when the respondent - original plaintiff is also agreeable for remand, we need not elaborately examine the said aspect and suffice it to state that as the summons was not duly served upon the appellant herself, it would be a fit case to exercise the discretion for remanding the matter to the Family Court.
It is an admitted position that no opportunity was not availed of or not given to the appellant to lead the evidence and/or to cross-examine the original plaintiff - respondent herein.
We may state that on behalf of the respondent - original plaintiff, it has been stated by Ms.Parikh that the respondent - original plaintiff has not remarried after the judgement and decree of the Family Court.
In view of the aforesaid, the impugned judgement and decree of the Family Court is quashed and set aside with the direction that the Family Suit No.217 of 2010 shall stand restored to the Family Court, Junagadh. The Family Court shall give opportunity of cross-examination and leading of evidence and also of submitting the reply, if any, to the appellant as well as the respondent herein and thereafter shall pass appropriate orders in accordance with law.
On behalf of the appellant, a declaration is made that the appellant shall appear either herself or through authorized lawyer within four weeks from today.
The appeal is allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs.
(Jayant Patel, J.) (R. M. Chhaya, J.) vinod Top