Saturday, January 5, 2013
KULDIP SINGH (J)
KANIA, M.H. (CJ)
Ex -Parte Divorce Decree
Supreme Court of India
Mrs. Payal Ashok Kumar Jindal vs Capt. Ashok Kumar Jindal
1992 SCR (3) 81 1992 SCC (3) 116
JT 1992 (4) 28 1992 SCALE (1)1079
Family Court's Act, 1984 : Section 10.
Hindu Marriage Act, 1956 : Section 13.
Code of Civil Procedure, 1908 Or 5. Rule 9, 10 and 9 rule 6.
Constitution of India, 1950 : Articles 136 and 142. Divorce proceedings against wife Family Court Pune- Petition for transfer in Supreme Court by wife for transfer of proceedings from Family Court Pune to Family Court Delhi- Petition dismissed-Notices by Registered Post and substituted service by Newspaper publication made for appearance of wife-Non appearance of wife-Set ex parte- Divorce decree granted to husband-Application by wife for setting aside ex parte decree-Dismissed-High Court confirming the dismissal order-Appeal by wife to Supreme Court-Allowed-Held sufficient cause for non appearance- Exparte decree set aside-Case transferred to Family Court, Bombay.
The parties to the appeal were married on January 24, 1988 at Noida near Delhi. They hardly lived as husband and wife at Pune for about seven months when on August 16, 1988 the husband-Respondent filed a petition under Section 13 of the Hindu Marriage Act, 1956 for dissolution of the marriage on the ground of cruelty. He alleged that the wife had a habit of smoking and drinking and even once came drunk to the house and abused everybody. The wife vehemently denied the allegations and claimed that she was a homely, vegetarian, non-smoking, teetotaler and faithful house-wife.
During the pendency of the aforesaid divorce-proceeding before the Family Court,Pune, the wife filed a petition, on May 1, 1989, before this Court seeking transfer of the case from the Family Court, Pune to Delhi. This Court granted ad interim stay of the proceedings which remained operative till September 11, 1989 when the Transfer Petition was dismissed
and the stay become vacated.
Thereafter, the husband appeared before the Family Court on September 15, 1989 whereas the wife remained absent. Notice were sent by registered post to the wife on her address at Noida and also at her Delhi address given in the proceedings before this Court. The notices having come back with the remarks "not found", the Family Court ordered sub-stituted service, and a notice was published in a Delhi daily newspaper asking the wife to appear before the Family Court on November 16, 1989. The wife not having appeared on the said date the Family Court ordered ex-parte proceedings. The issues were framed on November 21, 1989, evidence of the husband was recorded on November 25,1989 and the judgment was pronounced on November 30, 1989, granting the husband a divorce decree.
The wife filed an application dated December 18, 1989 for setting aside the ex-parte divorce-decree. She contended that she was forced to leave the matrimonial home at Pune and was residing with her parents at Noida, and that in October/November, 1989 she had gone to reside with her brother at Delhi, that she applied to the Army Authorities claiming maintenance out of her husband's salary, and that the Army Authorities sent a letter dated December 14, 1989 to her father informing that the application for maintenance could not be entertained as the husband had already obtained a divorce decree from the Court. She further contended that for the first time on or about December 14, 1989 she came to know from her father that her husband had been granted an ex-parte divorce decree by the Family Court. The Family Court dismissed the application for setting aside ex-parte divorce-decree, and the High Court upheld the reasoning and conclusions reached by the Family Court and dismissed the appeals filed by the wife. In the appeal to this Court by the wife it was contended that: (1) The Family Court and the High Court grossly erred in dismissing the application filed by the appellant for setting aside the ex-parte proceedings; (2) the divorce petition should have been dismissed as not competent in terms of Section 14 of the Hindu Marriage Act as the Statutory period of one year had not lapsed since the date of marriage, (3) even on merits the divorce-decree is based on no evidence, the allegations in the divorce- petition
being wholly vague, and (4) the High Court acted illegally in substituting the decree of divorce to that of a decree for judicial separation.
Allowing the Appeal, this court,
HELD: 1. The appellant filed written statement before the Family Court,Pune denying the allegations made against her by the respondent. She also raised preliminary objections regarding the maintainability of the divorce petition. Though her transfer petitions before this Court were dismissed in September, 1989 and on April 12, 1990 and that she did not approach the High Court for transfer of her case, the fact remains that she has been seriously contesting the divorce proceedings and it would not be fair to assume that she deliberately chose to abstain from the Family Court, and was intentionally avoiding the summons.
2. In the facts and circumstances of this case, the appellant was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties. The applicability of the Rules of natural justice depends upon the facts and circumstances of each case. Fair-play and the interest of justice in this case required the issuance of a fresh notice to the parties after the stay order was vacated by this Court.
3. The Family Court, sent two Registered notice to the appellant at her Noida address and also at the address given by her in the proceedings before this Court. Unfortunately, both the notices came back with the endorsements that the appellant could not be found on the given addresses. On the record there is no material to reach a conclusion that the appellant refused to receive the notices, or to show whether the postal authorities made any efforts to deliver the registered letters to any of the appellants' relations at the given addresses. The Courts below are therefore wholly unjustified in holding that the appellant refused to receive the notices and further that the said notices could have been received by any of her relations on the given addresses.
4. After the notices sent by registered post were received back, the Family Court did not make any attempt to serve the appellant through the process of the Court. The appellant was not stranger to the respondent. She was his wife. It could not have been difficult for him to find out the address where she was staying . Under the circumstances resort to the
substitute service by way of publication in the newspaper was not justified. There was, therefore,sufficient cause for the non-appearance of the appellant in the matrimonial petition before the Family Court.
5. With a view to do complete justice between the parties it is directed that this case be transferred from the file of the Principal Judge, Family Court, Pune to the Principal Judge, Family Court, Bombay, and the parties are directed to appear before the Principal Judge, Family Court Bombay.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2446 of 1991.
From the Judgement and Order dated 11.10.1990 of the Bombay High Court in F.A. No. 649 of 1990. Mrs. C.M. Chopra for the Appellant.
Respondent in person.
The Judgment of the Court was delivered by KULDIP SINGH, J. His parents advertised for " homely non-medico" bride. Her parents responded. Marriage took place on January 24, 1988 at Noida near Delhi. They hardly lived as husband and wife at Pune for about seven months when on August 16, 1988 the husband filed a petition under Section 13 of the Hindu Marriage Act for dissolution of Marriage on the ground of cruelty. He alleged "she had a habit of smoking" and "it was found that she was in the habit of drinking and even once came drunk to the applicant's house and abused everybody". He further alleged " it was found by the applicant that she was working as a model prior to marriage and he found few pictures of the respondent in bikini and semi-nude clothes in magazines". She vehemently denied the allegations and claimed that the she was a homely, vegetarian, non-smoking, teetotaller and faithful house-wife. The Family Court at Pune proceeded ex- parte and granted divorce-decree by the order dated November 30, 1989. Wife's application for setting aside the ex-parte decree was dismissed by the Family Court on June 24, 1990. The High Court by its judgment dated October 10/11, 1990 unheld the findings of the Family Court with the modification that in place of decree for dissolution of marriage it granted a decree for judicial separation. This appeal by way of special leave is by the wife against the judgments of the courts below.
During the pendency of the divorce-proceedings before Family Court, Pune, the wife filed a petition, on May 1, 1989, before this Court seeking transfer of the case from the Family Court, Pune to Delhi. This Court granted ad interim stay of the proceedings before the Family Court, Pune. The stay remained operative till September 11, 1989 when this Court dismissed the transfer petition and vacated the stay. Thereafter the husband appeared before the Family Court on September 15, 1989 whereas the appellant-wife remained absent. Notices were sent by registered post to the wife on her address at Noida and also at her Delhi address given by her in the proceedings before this Court. The notice came back with the remarks "not found". The Family Court ordered substituted service and a notice was published in the "Times of India" New Delhi of dated October 24.1989 asking the wife to appear before the Family Court on November 16, 1989 or the proceedings would be taken ex-parte. On November 16, 1989 the Family Court ordered ex- parte proceedings. The issues were framed on November 21, 1989, the evidence of the husband was recorded on November 25, 1989 and the judgment was pronounced on November 30, 1989.
The appellant filed an application dated December 18, 1989 for setting aside the ex-parte divorce-decree wherein she stated that after she was forced to leave her matrimonial-home at Pune, she was residing with her parents at Noida. She further stated that in October/November, 1989 she had gone to reside with her brother at Delhi. According to her she applied to the Army Authorities claiming maintenance out of her husband's salary. Respondent-husband is an Army officer. The Army Authorities sent a letter dated December 14, 1989 to her father wherein it was mentioned that his daughter's application for maintenance allowance could not be entertained because the husband had already obtained a divorce-decree from the court. A copy of the Family Court Judgment granting divorce-decree to the husband was also annexed to the letter. The appellant claims that for the first time, on or about December 14, 1989, She came to know through her father that the respondent had already been granted an ex-parte divorce- decree by the Family Court. The appellant in her application inter alia stated as under:- "The applicant submits that the applicant did not receive any notice/letter/summons or communication from this Hon'ble Court's office. Even there was no intimation given by postal
authorities and the applicant honestly states that till the receipt of the letter from the Army H.Q. New Delhi, she was not aware of the date of proceeding. The applicant submits, the applicant was under bona fide belief that she will receive a notice from this Hon'ble Court. As such and being far from Pune, either in Noida ( U.P.) or at New Delhi, it was not possible for her to approach this Hon'ble Court for any enquiry since she was also not permitted to appear through the lawyer.......At any rate and in any event, the applicant also did not come across the public notice published in Times of India, New Delhi on 24th October 1989 as stated in the decree. The applicant submits, the applicant had every intention to resist the marriage petition filed by the opponent since the same was absolutely false, frivolous and out and out false, and has been resisted by the applicant by filing written statement, preliminary objection including to approach the Supreme Court of India. The intention of the applicant was clear. The applicant submits, the applicant was also advised by her Advocate that she will receive a fresh notice in due course of time after the stay was vacated by the Hon'ble Supreme Court of India from this Hon'ble Court. The applicant states, she resides at a far long distance from Pune. She was also refused any assistance of lawyer. The applicant has no relation or any representative who can look after her in the present proceeding in Pune. It was in these circumstances, the applicant was prevented by sufficient cause from appearing in the marriage petition proceeding No.561/89 and as such the said decree is required to be set aside ..... The applicant states, the applicant is unable to maintain herself, she has no source of income ..... The applicant submits because of the passing of ex-parte decree, she has been refused maintenance allowance. The applicant also prays for granting of maintenance allowance pending final disposal of this application."
The Family Court dismissed the application for setting aside ex-parte divorce-decree on the following reasoning:- "But where the party itself knows that stay obtained by it has been vacated, there appears no warrant for the proposition that again a notice is required to be given to the said party. I do 87
not think that such advice was really given to the applicant. The applicant has not produced any evidence to the effect that she received such advice from a lawyer. It is her own statement. It is a self-serving statement and can hardly be believed. I think that if the applicant was really keen and desirous to contest matrimonial petition, she would have at once made enquiries to find out as to when the next date for hearing in this court was fixed after her application for transfer of the case was dismissed by the Supreme Court and the stay obtained by her was vacated. The order of vacating the stay was passed on 11th September 1989 by the Hon'ble Supreme Court and the applicant knew fully well about it. The opponent who had also appeared in the Supreme Court in connection of that matter did appear in this Court on 15.9.1989. The record of P.A. No. 561/89 shows that opponent applied for issuing of notice to the present applicant. The notice was issued by registered post on two separate addresses. One of the address was the one shown by applicant herself in Supreme Court petition and the other address was the one which was admitted to be her address in the matrimonial petition (which was address of her father at Delhi). Both these notices were sent by registered post in due course. The court waited till return of this notice. On both these envelops postal authorities have endorsed that the present applicant was not found on these addresses. The opponent had, therefore, made application that the applicant was avoiding to take notice and hence substituted service by publishing in Times of India be made. Accordingly, a notice was published as per order of the Court on opponent's application......Thus the contention of the respondent that she had no notice of the further proceeding in marriage petition does not appear convincing. As stated already in the first instance, there was no necessity for her to wait for receipt of the notice in the circumstances of the present case. The notices sent to her were obviously evaded, otherwise there was no reason why the applicant was found on either of the addresses which she admits to be the correct addresses. Even if she was not present, there was no reason why other major members of the family did not accept these notices. And lastly the publication of the notice
in one of the most widely circulated newspaper at Delhi was sufficient notice to the applicant." The High Court upheld the reasoning and the conclusions reached by the Family Court and dismissed the appeals filed by the wife.
The respondent appeared before us in person and himself argued his case. The learned counsel for the appellant raised the following points for our consideration:- (a) That the Family Court and the High Court grossly erred in dismissing the application filed by the appellant for setting aside the ex-parte proceedings; (b) That the divorce-petition was filed hardly seven months after the marriage. Section 14 of the Hindu Marriage Act provides "it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage". The divorce petition should have been dismissed as not competent in terms of Section 14 of the Hindu Marriage Act;
(c) that even on merits the divorce-decree is based on no evidence. The allegations in the divorce-petition are wholly vague. In any case the evidence of Major Ved Prakash being wholly interested and contrary to the record the courts below fell into grave error in accepting serious allegations against the appellant on the basis of his evidence;
(d) that the High Court acted illegally in substituting the decree of divorce to that of a decree for judicial separation. The High Court should have dismissed the divorce-petition.
We may take-up the Fist Point.
The appellant filed written statement before the Family Court, Pune vehemently denying the allegations made against her by the respondent. She also raised preliminary objections regarding the maintainability of the divorce petition. She filed a transfer petition before this Court which was dismissed in September, 1989. She filed another transfer petition which was dismissed by this Court on April 12,1990 with the following observations:- 89
"It is open to the petitioner to move the High Court under Section 24, Code of Civil Procedure for consideration of her prayer that the case be transferred to another Judge. On the merits of this prayer, we decline to make any observation. It would appear that the case is now listed before the Family Judge at Pune on 13.4.90. It will be appropriate that having regard to the apprehension expressed by the petitioner the Court should not proceed with the matter until her prayer for transfer is considered by the High Court. We accordingly direct the Family Court, Pune to stay further proceeding in the case, a period of 60 days from today to enable the petitioner to approach the High Court."
It is no doubt correct that the appellant did not approach the High Court for the transfer of the case but the fact remains that she was been seriously contesting the divorce proceedings and it would not be fair to assume that she deliberately choose to abstain from the Family Court and was intentionally avoiding the summons.
The Family Court and the High Court have held that after the dismissal of the transfer petition and vacation of stay by this Court the appellant-wife should have, on her own, joined the proceeding before the Family Court. According to the courts below no notice for appearance was required to be sent to the parties after the stay was vacated.
It is not necessary for us to go into the question as to whether a fresh notice to the parties is necessary where the superior Court vacates the stay order and as a consequence the proceeding recommence before the court below. We are of the view that in the fact and circumstances of this case the interest of justice required the issue of such a notice. The admitted facts in this case are as under:-
(i) While dismissing the transfer petition and vacating the stay order this Court did not fix any date for the appearance of the parties before the Family Court, Pune
(ii) The Family Court had permitted the assistance of a lawyer to the appellant-wife in the following terms: "As applicant is from Delhi and it would cause hardship, permission is granted
for engaging an Advocate for pleading her case only for the purpose of presenting applications or serving notices and noting the orders of the Court."
(iii) The appellant did not engage a lawyer to represent her before the Family Court, Pune. (iv) The appellant-wife was residing with her parents at Noida (Delhi).
Even the distance between Noida and Pune was a big hassle for the appellant especially when she had no counsel to look after the proceedings before the Family Court, Pune. We are of the view that in the facts and circumstances of this case she was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties. The applicability of the Rules of natural justice depends upon the facts and circumstances of each case. We are of the view that in the facts and circumstances of this case she was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties. The applicability of the Rules of natural justice depends upon the facts and circumstances of each case. We are of the view that in this case fair-play and the interest of justice required the issuance of a fresh notice to the parties after the stay order was vacated by this Court. We do not, therefore, agree with the findings of the Courts below to the contrary.
In any case-realising the requirements of natural justice-the Family Court, sent two registered notices to the appellant at her Noida address and also at the address given by her in the proceedings before this Court. Unfortunately, both the notices came back with the endorsements that the appellant could not be found on the given addresses. There is no material on the record to reach a conclusion that the appellant refused to receive the notices. There is also nothing on the record to show as to whether the postal authorities made any efforts to deliver the registered letters to any of the appellant's relations at the given addresses. The courts below are wholly unjustified in holding that the appellant refused to receive the notices and further that the said notices could have been received by any of her relations on the given addresses. After the notices sent by registered post were received back, the Family Court did not make any attempt to serve the appellant through the process of the Court. The appellant was no stranger to the respondent. She was his wife. It could not have been difficult for him to find out the address where she was staying. Under the circumstances, resort to the substitute service by way of publication in the newspaper was not justified.
We are, therefore, of the view that there was sufficient cause for the non-appearance of the appellant in the matrimonial petition before the Family Court. The view we have taken on the first point, it is not necessary to deal, with the other points raised by the learned counsel for the appellant.
We, therefore, set aside the order of the Family Court dated June 24, 1990 and allow the appellant's application dated December 18, 1989 and set aside the ex-parte decree passed against the appellant in Marriage petition No. A- 561/89. As a consequence the judgment of the Family Court, Pune dated November 30, 1989 and the judgment of the High Court in First Appeal No. 649/90 dated October 10/11, 1990 are also set aside.
The appellant had asked for transfer of her case from the Principal Judge, Family Court, Pune to some other court and this Court gave liberty to the appellant to move the High Court for the said purpose. We are satisfied that the reason given by the appellant for such transfer and the apprehensions entertained by her are wholly unjustified. We ar, however, of the view that the Principal Judge, Family Court Pune, has taken the grievances made by the appellant before this Court rather seriously and has commented adversely about the same. With a view to do complete justice between the parties we direct that this case be transferred from the file of Principal Judge, Family Court, Pune to the Principal Judge, Family Court, Bombay. The parties are directed to appear before the Principal Judge, Family Court, Bombay on June 22, 1992.
Before concluding we wish to place on record that we tried to persuade the parties to live together and in the alternative to settle their dispute amicably but with no result.
We allow the appeal in the above terms with no order as to costs.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : F. A. O. No. 3477 of 2006
Date of Decision : April 19, 2012
Surjit Kaur alias Sito .... Appellant
Harmesh Pal .... Respondent
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Sudhir Pruthi, Advocate
for the appellant.
Mr. Padam Jain, Advocate
for the respondent.
* * *
L. N. MITTAL, J. (Oral) :
Surjit Kaur alias Sito has filed this First Appeal assailing order dated 07.02.2006 passed by learned Additional District Judge, Jalandhar, thereby dismissing application moved by the appellant for setting aside ex- parte judgment and decree of divorce dated 27.09.1999. Respondent Harmesh Pal, who is a police Constable, filed divorce petition under Section 13 of the Hindu Marriage Act, 1955 (in short - the Act) against the appellant-wife. Perusal of the divorce petition file F. A. O. No. 3477 of 2006 2
reveals that notice thereof was issued to the wife for 10.06.1999. The notice was received back with the report of refusal. The wife was then summoned by publication in Newspaper Daily (Punjabi Edition) namely Chardi Kalan, Patiala, for 04.08.1999. Notice was published in Newspaper and since the wife did not appear, she was proceeded ex-parte on 04.08.1999. After recording ex-parte evidence of the husband (respondent herein), the said divorce petition was decreed vide ex-parte judgment and decree dated 27.09.1999.
The wife moved application on 31.05.2000 for setting aside the ex-parte judgment and decree of divorce alleging that she was never served with summons in the divorce petition nor she ever refused to accept the summons. The husband had been treating her with cruelty and demanding more dowry and was also levelling allegations of adultery. The wife moved application to Senior Superintendent of Police, Kapurthala in May 1999 for taking action against the husband. However, no action was taken on account of influence of the husband being police official. Again, the wife moved application dated 03.04.2000 to Chief Minister and application to Senior Superintendent of Police, Kapurthala on 24.04.2000. Thereupon, the husband was summoned to Women Police Station, where he produced photocopy of ex-parte judgment and decree dated 27.09.1999 and thereupon, the wife, for the first time, learnt of the divorce petition and F. A. O. No. 3477 of 2006 3
decree passed therein, in the first week of May 2000. After obtaining certified copies of judgment and decree, the wife filed this application. The husband, in his reply, controverted the allegations made by the wife. It was also alleged that the application is time barred. Various other pleas were also raised.
Learned Additional District Judge, vide impugned order dated 07.02.2006, dismissed the wife's application for setting aside ex-parte judgment and decree of divorce. Feeling aggrieved, wife has filed this appeal.
I have heard learned counsel for the parties and perused the case file including file of the trial court.
Perusal of divorce petition file reveals that the address of the wife, as given in the divorce petition, was of Village Uchha Boharwala. However, summons of divorce petition issued to the wife for 10.06.1999 was allegedly served on the wife in Village Jainpur i.e. native village of the husband himself, when the wife allegedly refused to accept the summons. Then she was served by publication in Newspaper. The report of refusal was allegedly thumb marked by Banta Chowkidar. The husband has examined Tarsem RW-3, who is son of Banta Chowkidar. In his affidavit of examination-in-chief, Tarsem stated that he identified the signatures of his father on the refusal report as he had been seeing his father signing during F. A. O. No. 3477 of 2006 4 his life time. This entire evidence has been procured by the husband because the report of refusal was not signed by Banta, but purports to bear his thumb impressions and not signatures. The reason for Tarsem to depose falsely in favour of husband is not far to seek. He admitted that the husband is his nephew. It is thus apparent that false report of refusal of summons by the wife was procured. It is also significant to notice that according to Tarsem, the wife, at the time of refusal of summons by her, was residing in the house of Ramesh Pal, who is none else, but real brother of the husband. On the one hand, the husband had filed divorce petition against the wife alleging that she had deserted him and was residing in her parental house and on the other hand, she was sought to be served at the address of real brother of the husband himself in his own native village. It exposes the manipulations of the husband in procuring the ex-parte judgment and decree.
Service by publication in Newspaper cannot be said to be sufficient service. The trial court, while ordering substituted service by publication in Newspaper, did not even observe that the wife was intentionally evading service or that she could not be served in the ordinary course. Without recording such satisfaction, substituted service could not be ordered. Even otherwise, the wife, who is a rustic illiterate villager, could not have read the Newspaper in which the notice for her service was F. A. O. No. 3477 of 2006 5 published.
For the reasons aforesaid, I am satisfied that the wife-appellant was not served properly in the divorce petition, and therefore, ex-parte judgment and decree in question are liable to be set aside. As regards limitation, the wife has categorically asserted that she learnt of the ex-parte judgment and decree in question only in first week of May 2000, and therefore, application filed on 31.05.2000 for setting aside the ex-parte judgment and decree is within limitation. The wife has explained that she learnt of ex-parte judgment and decree when the husband produced copy thereof in Women Police Station, where he was summoned pursuant to complaint made by the wife. The husband, in his reply, has admitted that he had produced the copy of ex-parte judgment and decree in the Women Police Station. Consequently, the application moved by the wife is also proved to be within limitation.
Counsel for respondent-husband contended that after ex-parte decree of divorce, the husband re-married on 30.09.1999 and now has one child from the second marriage. Relying on judgment of Hon'ble Supreme Court in the case of Parimal vs. Veena @ Bharti reported as 2011 (2) RCR (Civil) 155, counsel for the respondent contended that in view of re- marriage of the husband and birth of a child from the second marriage, ex- parte decree of divorce should not be set aside. The contention is F. A. O. No. 3477 of 2006 6 completely misconceived and meritless. There is neither any pleading nor any evidence on record to substantiate the aforesaid contention raised by counsel for the respondent-husband. Judgment in the case of Parimal (supra) is not applicable to the facts of the instant case at all. In that case, the wife did not put in appearance despite service of summons by Process Server as well as by registered post and substituted service. In the instant case, however, there was no service of summons in the divorce petition on the wife at all. Secondly, in the case of Parimal (supra), the wife moved application for setting aside ex-parte decree of divorce after four years of passing of the ex-parte decree. In the instant case, the application was moved by the wife just eight months after the passing of ex-parte decree of divorce and within 30 days of acquiring knowledge thereof. Thirdly, in the case of Parimal (supra), the husband contracted second marriage two years after the ex-parte decree of divorce, whereas in the instant case, as per assertion of counsel for the respondent-husband, he contracted second marriage just three days after the ex-parte decree of divorce. The said second marriage is also hit by Section 15 of the Act, which stipulates that after decree of divorce, a spouse may re-marry after limitation for filing appeal has expired and no appeal has been preferred or appeal has been preferred and dismissed. In the instant case, however, the husband performed second marriage just three days after ex-parte decree of divorce, F. A. O. No. 3477 of 2006 7 without waiting for limitation period for filing appeal against ex-parte decree of divorce. It rather shows mala fide and misconduct of the respondent-husband. Thus, judgment in the case of Parimal (supra) has no applicability whatsoever to the facts of the case in hand. For the reasons aforesaid, I find that the appellant-wife has made out sufficient ground for setting aside ex-parte judgment and decree of divorce dated 27.09.1999. Finding of the trial court to the contrary is perverse and illegal and is based on misreading and misappreciation of evidence and is difficult to sustain. Accordingly, the instant First Appeal is allowed. Impugned order dated 07.02.2006 passed by learned Additional District Judge, Jalandhar is set aside. Application moved by appellant-wife for setting aside ex-parte judgment and decree of divorce dated 27.09.1999 is allowed and said judgment and decree are set aside. The trial court shall now proceed with the divorce petition in accordance with law. Record of the court below be sent back at once.
Parties are directed to appear before the trial court on 10.05.2012.
April 19, 2012 ( L. N. MITTAL ) monika JUDGE
Sunday, November 4, 2012
Ex-Parte Divorce Decree on the basis of refusal of Court Notice/Summon , sent by the court to wife by various mode and several times.
Supreme Court of India
Parimal vs Veena @ Bharti on 8 February, 2011
Bench: P. Sathasivam, B.S. Chauhan
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO...1467... OF 2011
(Arising out of S.L.P.(C) NO. 19632 of 2007)
Parimal ... Appellant Versus
Veena @ Bharti ...Respondent J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. Leave granted.
2. This appeal has been preferred against the judgment and order dated 17.7.2007, passed by the High Court of Delhi at New Delhi, in FAO No.63 of 2002, by which the High Court has allowed the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter called CPC), reversing the judgment and order dated 11.12.2001, passed by the Additional District Judge, Delhi.
(A) Appellant got married to the respondent/wife on 9.12.1986 and out of the said wed lock, a girl was born. The relationship between 1
the parties did not remain cordial. There was acrimony in the marriage on account of various reasons. Thus, the appellant/husband filed a case for divorce on 27.4.1989, under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, against the respondent/wife. (B) Respondent/wife refused to receive the notice of the petition sent to her by the Court on 4.5.1989 vide registered AD cover for the date of hearing on 6.7.1989. Respondent/wife on 28.6.1989 was present at her house when the process server showed the summons to her. She read the same and refused to accept it. Refusal was reported by the process server, which was proved as Ex.OPW1/B. (C) Again on 7.8.1989, she refused to accept the notice for 8.9.1989, sent by the Court through process server. The Court ordered issuance of fresh notices. One was issued vide ordinary process and the other vide Registered AD cover for 8.9.1989. Registered AD was returned to the Court with report of refusal, as she declined to receive the AD notice. Under the Court's orders, summons were affixed at the house of the respondent/wife, but she chose not to appear.
(D) She was served through public notice on 6.11.1989 published in the newspaper `National Herald' which was sent to her address, 3/47, 2
First Floor, Geeta Colony, Delhi. This was placed on record and was not rebutted by the respondent/wife in any manner. (E) After service vide publication dated 8.11.1989 as well as by affixation, respondent/wife was proceeded ex- parte in the divorce proceedings. Ex-parte judgment was passed by Addl. District Judge, Delhi on 28.11.1989 in favour of the appellant/husband and the marriage between the parties was dissolved.
(F) Two years after the passing of the decree of divorce, on 16.10.1991, the appellant got married and has two sons aged 17 and 18 years respectively from the said marriage.
(G) The respondent, after the expiry of 4 years of the passing of the ex-parte decree of divorce dated 28.11.1989, moved an application dated 17.12.1993 for setting aside the same basically on the grounds that ex-parte decree had been obtained by fraud and collusion with the postman etc., to get the report of refusal and on the ground that she had not been served notice even by substituted service and also on the ground that even subsequent to obtaining decree of divorce the appellant did not disclose the fact of grant of divorce to her during the proceedings of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C.). The said 3
application under Order IX, Rule 13 CPC was also accompanied by an application under Section 5 of the Indian Limitation Act, 1963, for condonation of delay.
(H) The trial Court examined the issues involved in the application at length and came to the conclusion that respondent/wife miserably failed to establish the grounds taken by her in the application to set aside the ex-parte decree and dismissed the same vide order dated 11.12.2001.
(I) Being aggrieved, respondent/wife preferred First Appeal No.63 of 2002 before the Delhi High Court which has been allowed vide judgment and order impugned herein. Hence, this appeal. RIVAL SUBMISSIONS:
4. Shri M.C. Dhingra, Ld. counsel appearing for the appellant has submitted that the service stood completed in terms of statutory provisions of the CPC by the refusal of the respondent to take the summons. Subsequently, the registered post was also not received by her as she refused it. It was only in such circumstances that the trial Court entertained the application of the appellant under Order V, Rule 20 CPC for substituted service. The summons were served by publication in the daily newspaper `National Herald' published from 4
Delhi which has a very wide circulation and further service of the said newspaper on the respondent/wife by registered post. The High Court committed a grave error by taking into consideration the conduct of the appellant subsequent to the date of decree of divorce which was totally irrelevant and unwarranted for deciding the application under Order IX, Rule 13 CPC. More so, the High Court failed to take note of the hard reality that after two years of the ex-parte decree the appellant got married and now has two major sons from the second wife. Therefore, the appeal deserves to be allowed and the judgment impugned is liable to be set aside.
5. On the contrary, Ms. Geeta Dhingra, Ld. counsel appearing for the respondent/wife has vehemently opposed the appeal, contending that once the respondent/wife made the allegations of fraud and collusion of the appellant with postman etc. as he succeeded in procuring the false report, the burden of proof would be upon the appellant and not upon the respondent/wife to establish that the allegations of fraud or collusion were false. The conduct of the appellant even subsequent to the date of decree of divorce, i.e. not disclosing this fact to the respondent/wife during the proceedings under Section 125 Cr.P.C., disentitles him from any relief before this 5
court of equity. No interference is required in the matter and the appeal is liable to be dismissed.
6. We have considered the rival submissions made by learned counsel for the parties and perused the record.
7. Order IX, R.13 CPC:
The aforesaid provisions read as under:
"Setting aside decree ex-parte against defendant In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the de- cree was passed for an order to set it aside; and if he sat- isfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; xx xx xx Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
xx xx xx" (Emphasis added)
8. It is evident from the above that an ex-parte decree against a 6
defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court.
The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.
9. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there 7
was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr., AIR 1968 SC 222;Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another, (2010) 5 SCC 459)
10. In Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also: Brij Indar Singh v. Lala Kanshi Ram & Ors., AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR 8
1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953).
11. While deciding whether there is a sufficient case or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054).
12. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for 9
which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application. PRESUMPTION OF SERVICE BY REGISTERED POST & BURDEN OF PROOF:
13. This Court after considering large number of its earlier judgments in Greater Mohali Area Development Authority & Ors. v. Manju Jain & Ors., AIR 2010 SC 3817, held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287.
14. In Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, this Court held as under: "There is presumption of service of a letter sent 1
under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service."
15. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
16. The case at hand is required to be considered in the light of the aforesaid settled legal propositions. The trial Court after appreciating the entire evidence on record and pleadings taken by the parties recorded the following findings:
"The applicant/wife as per record was served with the notice of the petition, firstly, on 4.5.89 when she had refused to accept the notice of the petition vide registered AD cover for the date of hearing i.e. 6.7.89 and thereafter on 7.8.89 when again she refused to accept the notice for 8.9.89 and thereafter when the notice was published in the newspaper `National Herald' on 6.11.89. The UPC Receipt dated 6.11.89 vide which the newspaper `National Herald' dated 6.11.89 was sent to the respondent/applicant at her address 3/47, First Floor, Geeta Colony, Delhi is on record and has not been rebutted in any manner.
In these circumstances, the application u/o 9 Rule 13 CPC filed by the respondent/applicant/wife on 7.1.1994 is hopelessly barred by time and no sufficient ground has been shown by the applicant/wife for condoning the said inordinate delay."
17. So far as the High Court is concerned, it did not deal with this issue of service of summons or as to whether there was "sufficient cause" for the wife not to appear before the court at all, nor did it set aside the aforesaid findings recorded by the trial Court. The trial Court has dealt with only the aforesaid two issues and nothing else. 1
The High Court has not dealt with these issues in correct perspective. The High Court has recorded the following findings: "The order sheets of the original file also deserve a look. The case was filed on 1.5.1989. It was ordered that respondent be served vide process fee and Regd. AD for 6.7.1989. The report of process server reveals that process server did not identify the appellant and she was identified by the respondent himself. In next date's report appellant was identified by a witness. The Retd. AD mentions only one word "refused". It does not state that it was tendered to whom and who had refused to accept the notice. The case was adjourned to 8.9.1989. It was recorded that respondent had refused to take the notice. Only one word, "Refused" appears on this registered envelope as well. On 8.9.1989 itself it was reported that respondent had refused notice and permission was sought to move an application under Order 5 Rule 20 of CPC. On 8.9.1989, application under Section 5 Rule 20 CPC was moved and it was ordered that the appellant be served through "National Herald". The presumption of law if any stands rebutted by the statement made by the appellant because she has
stated that she was staying in the said house of her brother for a period of eight months. The version given by her stands supported by the statement made by her brother."
18. The High Court held that presumption stood rebutted by a bald statement made by the respondent/wife that she was living at different address with her brother and this was duly supported by her brother 1
who appeared as a witness in the court. The High Court erred in not appreciating the facts in the correct perspective as substituted service is meant to be resorted to serve the notice at the address known to the parties where the party had been residing last. (Vide Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors., (2008) 7 SCC 663).
19. More so, it is nobody's case that respondent/wife made any attempt to establish that there had been a fraud or collusion between the appellant and the postman. Not a single document had been summoned from the post office. No attempt has been made by the respondent/wife to examine the postman. It is nobody's case that the "National Herald" daily newspaper published from Delhi did not have a wide circulation in Delhi or in the area where the respondent/wife was residing with her brother. In such a fact-situation, the impugned order of the High Court becomes liable to be set aside.
20. The appellate Court has to decide the appeal preferred under Section 104 CPC following the procedure prescribed under Order XLIII, Rule 2 CPC, which provides that for that purpose, procedure prescribed under Order XLI shall apply, so far as may be, to appeals 1
from orders. In view of the fact that no amendment by Delhi High Court in exercise of its power under Section 122 CPC has been brought to our notice, the procedure prescribed under Order XLI, Rule 31 CPC had to be applied in this case. .
21. Order XLI, Rule 31 CPC provides for a procedure for deciding the appeal. The law requires substantial compliance of the said provisions. The first appellate Court being the final court of facts has to formulate the points for its consideration and independently weigh the evidence on the issues which arise for adjudication and record reasons for its decision on the said points. The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts. (vide: Moran Mar Basselios Catholicos & Anr. v. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526; Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146;Santosh Hazari v. Purshottam Tiwari, AIR 2001 SC 965; Madhukar v. Sangram, AIR 2001 SC 2171; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. 1
Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380).
22. The first appellate Court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial Court's judgment without opening the whole case for re-hearing both on question of facts and law. More so, the appellate Court should not modify the decree of the trial Court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate Court would fall short of considerations expected from the first appellate Court in view of the provisions of Order XLI, Rule 31 CPC and such judgment and order would be liable to be set aside. (Vide B.V. Nagesh & Anr. v. H.V. Sreenivassa Murthy, JT (2010) 10 SC 551).
23.In view of the aforesaid statutory requirements, the High Court was duty bound to set aside at least the material findings on the issues, in spite of the fact that approach of the court while dealing with such an application under Order IX, Rule 13 CPC would be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order IX, Rule 13 CPC, the court has no jurisdiction to set aside ex-parte 1
decree. The manner in which the language of the second proviso to Order IX, Rule 13 CPC has been couched by the legislature makes it obligatory on the appellate Court not to interfere with an ex-parte decree unless it meets the statutory requirement.
24. The High Court has not set aside the material findings recorded by the trial Court in respect of service of summons by process server/registered post and substituted service. The High Court failed to discharge the obligation placed on the first appellate Court as none of the relevant aspects have been dealt with in proper perspective. It was not permissible for the High Court to take into consideration the conduct of the appellant subsequent to passing of the ex-parte decree. More so, the High Court did not consider the grounds on which the trial Court had dismissed the application under Order IX, Rule 13 CPC filed by the respondent/wife. The appeal has been decided in a casual manner.
25. In view of the above, appeal succeeds and is allowed. The judgment and order dated 17.7.2007 passed by the High Court of Delhi in FAO No. 63 of 2002 is set aside and the judgment and order of the trial Court dated 11.12.2001 is restored. 1
Before parting with the case, it may be pertinent to mention here that the court tried to find out the means of re-conciliation of the dispute and in view of the fact that the appellant got married in 1991 and has two major sons, it would not be possible for him to keep the respondent as a wife. A lump sum amount of Rs. 5 lakhs had been offered by Shri M.C. Dhingra, Ld. counsel for the appellant to settle the issue. However, the demand by the respondent/wife had been of Rs. 50 lakhs. Considering the income of the appellant as he had furnished the pay scales etc., the court feels that awarding a sum of Rs. 10 lakhs to the wife would meet the ends of justice as a lump sum amount of maintenance for the future. The said amount be paid by the appellant to the respondent in two equal instalments within a period of six months from today. The first instalment be paid within three months.
(Dr. B.S. CHAUHAN)New Delhi,