Abusing in-laws a ground for divorce.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL Nos. 5511-5512 OF 2014


VINOD                             KUMAR                              SUBBIAH
.…..APPELLANTS

                                   Versus

SARASWATHI  PALANIAPPAN                                     …..RESPONDENTS


                           J  U  D  G  M  E  N  T



VIKRAMAJIT SEN,J.

1     These Appeals assail the Judgment of the learned Single Judge  of  the
High  Court  of  Judicature  at  Madras,  Bench  at  Madurai,  delivered  on
13.3.2013, setting aside the Judgment dated 25.8.2011 of  the  Trial  Court.
The  Impugned  Judgment  dismissed  the  divorce  petition  filed   by   the
Appellant.

2     The Appellant and the Respondent were married on 28.6.2004  and  moved
to the U.S. on 9.7.2004. They visited  Chennai  in  October  2005  and  June
2006. During the latter visit, the Respondent was three months pregnant  and
left for her parental home in Madurai on 10.6.2006 where she gave  birth  to
a male child on 5.12.2006. The  Appellant  subsequently  filed  for  divorce
under Section 13(1)(ia) of the Hindu Marriage Act on 30.4.2007.

3     The case put forward by the  Appellant  is  that  the  Respondent  was
verbally abusive; she would insult his family; she would threaten  to  lodge
false police complaints; and she would threaten to  commit  suicide  placing
the blame on the Appellant and his family. After she left for  her  parental
home in June 2006,  the  Appellant  attempted  to  bring  her  back  to  her
matrimonial home but she refused. The Appellant claims that he has been  put
through intolerable mental agony and can no longer continue  to  be  married
to the Respondent.

4     The Respondent denied these allegations and claimed that she  and  the
Appellant lived happily in the U.S., and she only went to her parental  home
in June 2006 for her child to be  born  there.  She  has  pleaded  that  she
returned to Chennai with her child  from  March  to  April  2007,  that  the
divorce  petition  was  completely  unexpected  and  was  the  result  of  a
misunderstanding  between  her  family  and  that  of  the  Appellant.   She
subsequently filed a petition seeking restitution of conjugal  rights  under
Section 9 of the Hindu Marriage Act, praying that the Appellant be  directed
to take her back to her conjugal home, which she  pleaded  is  in  the  U.S.
She alleged that her husband is living a wayward life, that  her  father-in-
law misbehaved with her, and that her  parents-in-law  were  negligent  with
her infant child and asked her to leave the house when she  questioned  them
about this. She also filed a maintenance petition seeking Rs.  2  lakhs  per
month as maintenance.

5     The Trial Court heard all three petitions together  and  examined  the
evidence submitted by the parties at length. The Appellant has deposed  that
when his sister came to the U.S., she initially  stayed  with  him  and  the
Respondent. However, the Respondent did not like having her  in  the  house,
so she locked the Respondent and his sister out of the  house,  was  abusive
towards them and told them that they  belonged  to  a  “prostitute  family”.
Eventually the Appellant’s sister was constrained to stay at  a  Lodge.  The
Respondent claimed that the dispute was because her sister-in-law  tried  to
make her join her diamond business, which she did not want to do. The  Trial
Court found no truth in the argument of the  Respondent,  in  light  of  the
fact that she has no  background  or  knowledge  of  the  diamond  business.
Furthermore, the Appellant has deposed that when his  brother  came  to  the
U.S. to study, he also initially stayed at the Appellant’s  house.  However,
it is in evidence that the Respondent called the Appellant at work  alleging
that his brother was knocking  on  her  door,  thus  implying  that  he  was
behaving in an untoward manner. She abused the Appellant and his  family  in
the presence of his brother and threatened to file a police  complaint.  The
Appellant  has  deposed  that  he  was  forced  to  make  his  brother  stay
elsewhere. In a subsequent event,  the  Appellant  informed  the  Respondent
that his parents would be coming to the U.S.  The  Respondent  was  verbally
and physically abusive, and called the police  alleging  domestic  violence.
The Appellant was given a warning by  the  Police.  The  Respondent  claimed
that the incident took place because the  Appellant  was  having  an  affair
with a woman named Solai. She claimed that he  took  her  to  Solai’s  house
that evening and then wanted to go back at night, which is  why  she  called
the police. The Trial Court has justifiably highlighted that  summoning  the
police was serious because the  Appellant  was  in  a  foreign  country  and
didn’t know the laws and procedure. Further,  the  allegation  that  he  was
having an  affair  was  not  accepted,  as  it  was  unbelievable  that  the
Respondent had previously not told anyone about Solai and  further  that  it
never came up du ring the attempted compromise between the families  of  the
two parties. The Respondent claimed that after having the  child,  she  came
to live with the Appellant, which the Appellant denied. The Respondent  also
alleged that while she was living with the Appellant’s family,  his  parents
took the child who was only three months old away  for  six  hours.  By  the
time they brought him back, he was unconscious due to starvation.  When  the
Respondent questioned them about this, they asked her  to  leave  the  house
with the child, even though it was late in the night. The Trial Court  found
this allegation entirely unbelievable. Her allegation  that  the  father  of
the Appellant started misbehaving  with  her  and  went  to  the  extent  of
pulling her hands was also found to be false.  The  Trial  Court  also  took
into consideration the voice mails and emails from  the  Respondent  to  the
Appellant, which were not treated as  the  main  evidence  but  as  evidence
intended to substantiate the oral evidence. It was held  that  the  evidence
and the submissions of the Respondent indicate that  she  was  unwilling  to
live in the Appellant’s house in Chennai, and that she wanted him  to  leave
his family in India and live in the U.S. with her. It is pertinent  to  note
that the Appellant had lost his job in  the  U.S.  and  was  unemployed  and
consequently had to  set  up  residence  in  Chennai.   In  light  of  these
circumstances, it was found that the Respondent is not entitled to  conjugal
rights. An order of dissolution of marriage was passed and  maintenance  was
fixed at Rs. 25,000 per month.

6     The High Court, however, held that the Appellant’s allegations in  his
divorce petition were no more than “the ordinary wear and tear”  that  takes
place in a marriage. It observed that the Appellant did not give details  of
the events of abuse by the Respondent towards  his  family  or  the  cruelty
that was meted out  to  him  in  the  U.S.  in  his  main  petition  or  his
subsequent counter affidavits. It was only after filing  the  petition  that
the Appellant had produced copies of the abusive voicemails  and  emails  he
received from the Respondent. The High Court noted that the Trial Court  did
not need to strictly adhere  to  hard  and  fast  rules  while  entertaining
evidence, but nevertheless held that the Trial Court had acted in  haste  in
allowing the Appellant’s allegations. The High Court found  that  the  Trial
Court, instead of considering whether the Appellant had established  cruelty
by adducing evidence, took  certain  answers  from  the  Respondent’s  Chief
examination and cross-examination out of context and held  that  a  case  of
cruelty  was  made  out.  The  High  Court  stated  that  in  a  matrimonial
relationship, parties must be prepared to subject themselves to  the  normal
wear and tear of life, and that the situation  at  hand  was  no  more  than
that.  The  divorce  petition  was  thus  dismissed  and  the  petition  for
restitution of conjugal rights was allowed.

7     We have carefully considered the matter, and find that we  are  unable
to uphold the conclusions of the High Court. The Appellant had duly  pleaded
instances of mental cruelty which he proved in evidence  and  documents.  An
examination of the divorce petition makes it abundantly clear  that  various
allegations of cruelty  were  made  out  and  a  number  of  incidents  were
mentioned therein. Further evidence was submitted during the course  of  the
Trial to substantiate these allegations, which is in keeping with  Order  VI
Rule 2 of the CPC.  Furthermore, we find that the Trial Court  examined  the
evidence at great length and  came  to  the  reasoned  conclusion  that  the
actions of the Respondent amounted to cruelty. If a spouse abuses the  other
as being born from a prostitute, this cannot be termed as  “wear  and  tear”
of family life.  Summoning the police on  false  or  flimsy  grounds  cannot
also be similarly viewed.  Making it impossible for any close  relatives  to
visit or reside in the matrimonial home would  also  indubitably  result  in
cruelty to the other spouse.  After a cursory  discussion  of  the  evidence
which the Trial Court had discussed  threadbare,  the  High  Court  was  not
justified to set aside  the  conclusions  arrived  at  by  the  Trial  Court
without giving substantiated reasons.

8     We thus allow these Appeals and set  aside  the  Impugned  Order,  but
desist  from  imposing  costs.   The   Trial   Court’s   decision   granting
dissolution of the marriage between the parties is hereby restored.

9     We allow the Respondent’s Application for disbursement of  the  amount
deposited by the Appellant towards her legal expenses in  pursuance  of  the
Order dated 4.7.2013.



.................................................J.
                                      [VIKRAMAJIT SEN]




…….............................................J.
                                    [ABHAY MANOHAR SAPRE]
New Delhi;
April 24,   2015.

Ex-Parte Divorce-second marriage without divorce.

                                                             REPORTABLE



                       IN THE SUPREME COURT OF INDIA

                        CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL No.457 OF 2008


RAVINDER KAUR                                      .......APPELLANT




                                   VERSUS



ANIL KUMAR                                           .......RESPONDENT




                               J U D G M E N T

J.S.KHEHAR, J.

                 The appellant (Ravinder  Kaur)  and  the  respondent  (Anil
Kumar) got married on 14.08.1991. Soon thereafter, the respondent  preferred
a  petition  seeking  divorce  from  the  appellant  before  the  Additional
District Judge, Ropar.   Having  received  summons  in  the  above-mentioned
case, the  appellant  entered  appearance  before  the  Additional  District
Judge, Ropar, on 08.10.1992.  On the following  day,  i.e.,  on  09.10.1992,
the respondent withdrew the petition filed by him under Section  13  of  the
Hindu Marriage Act, 1955.
                  The  respondent  filed  a  second  divorce   petition   on
30.04.1993, under Section 13 of the Hindu Marriage Act, 1955,  on  the  same
factual  premise  and  grounds  (as  the  earlier  petition),   before   the
Additional District Judge, Chandigarh.  Proceedings were  conducted  in  the
second divorce petition, in the absence of the appellant,  and  an  ex-parte
decree of divorce was granted to the respondent, on 08.01.1994.  It was  the
case of the appellant before this Court, that the respondent did not  inform
her, that the matrimonial ties between the parties had come to  an  end,  by
the decree of divorce dated 08.01.1994. And under the impression,  that  the
marriage was subsisting, he continued his  conjugal  relationship  with  the
appellant, as her husband, by deception.
                 It was also the case of the appellant, that  on  23.06.1994
the respondent married Sunita Rani.  It was, thereupon, that  the  appellant
became aware (on 23.06.1994 i.e., on  the  occasion  of  his  marriage  with
Sunita Rani) about the fact, that the respondent had  been  granted  an  ex-
parte decree of divorce on 08.01.1994 (by  the  Additional  District  Judge,
Chandigarh).  Within six days, of her coming to know, about  the  above  ex-
parte decree  of  divorce,  the  appellant  preferred  an  application,  for
setting aside the  said  ex-parte  decree,  on  29.06.1994.   The  same  was
allowed by the Additional District Judge,  Chandigarh,  on  19.02.1996.   In
sum and substance, therefore, the matrimonial  ties  between  the  appellant
and the respondent came to be restored, as if the marital  relationship  had
never ceased.
                 Based on the fact, that the respondent  had  continued  the
sexual relationship with the  appellant,  for  the  period  from  08.01.1994
(when the ex-parte decree of divorce was  passed)  till  he  married  Sunita
Rani on 23.06.1994, the appellant preferred a complaint before the  Judicial
Magistrate 1st Class, Kharar, under Section 376 of the  Indian  Penal  Code.
It is not a matter of dispute, that the respondent was discharged  from  the
above proceedings. In fact, no trial came to be conducted in furtherance  of
the above complaint made by the appellant.  The above  order  of  discharge,
was assailed by the appellant, before the High Court of Punjab and  Haryana,
at Chandigarh (hereinafter referred to  as  `the  High  Court').   The  High
Court affirmed the order of discharge,  on  10.07.1997.   Dissatisfied  with
the order of discharge, as also, the order passed by  the  High  Court,  the
appellant approached this Court. This Court declined to interfere  with  the
above orders.
                 On the same factual premise, as has  been  noticed  in  the
foregoing paragraphs (wherein  the  appellant  had  filed  a  complaint  for
initiation of proceedings under Section 376 of the Indian Penal  Code),  the
appellant filed a second complaint, this time  accusing  the  respondent  of
offences under Sections 493, 494, 495, 496, 420, 506 read with Section  120-
B of the Indian Penal Code.  The Judicial Magistrate 1st Class, Kharar,  did
not entertain the aforementioned  complaint  filed  by  the  appellant,  and
dismissed the same vide an order dated 27.11.2002.   Dissatisfied  with  the
aforesaid order, the appellant preferred a revision petition, assailing  the
above order dated 27.11.2002, before the  Sessions  Judge,  Roopnanagr.  The
aforesaid revision petition was dismissed on  04.09.2003.  The  order  dated
04.09.2003 was assailed by the appellant  before  the  High  Court,  through
Criminal Misc.No.50496-M  of  2003.  The  aforesaid  Criminal  Miscellaneous
Petition, was dismissed by the High Court on 10.01.2007.  The  order  passed
by the High Court on 10.01.2007 is a subject  matter  of  challenge  through
the instant appeal.

                 During the course  of  hearing,  learned  counsel  for  the
appellant very fairly asserted, that the claim raised by  the  appellant  in
the complaint, which is a subject matter of the present  consideration,  can
be pressed against the respondent, only with reference  to  the  accusations
levelled by the appellant, under Sections 493 and 494 of  the  Indian  Penal
Code.  It was, therefore, that the instant controversy will be  examined  by
us, limited to the allegations made by the  appellant,  under  Sections  493
and 494 of the Indian Penal Code only.
                 Learned counsel for  the  respondent,  while  opposing  the
prayer made on behalf  of  the  appellant  vehemently  contended,  that  the
present proceedings were not maintainable against  the  respondent,  in  the
light of Section 300 of the Criminal Procedure Code.   In  this  behalf,  it
was the submission of the learned counsel for the respondent,  that  it  was
not open to the appellant to raise a claim against the respondent, so as  to
subject the respondent to a trial  again,  on  the  same  facts  as  in  the
earlier complaint, even for an offence, other than the one,  with  reference
to which the earlier compalint was filed (under Section 376  of  the  Indian
Penal Code). To examine  the  veracity  of  the  contention  raised  by  the
learned counsel for the respondent, Section 300  of  the  Code  of  Criminal
Procedure is being extracted hereunder:
      "300.  Person  once convicted or acquitted not to be  tried  for  same
offence.

(1) A person who has once been tried by a Court  of  competent  jurisdiction
for an offence and convicted or acquitted of such offence shall, while  such
conviction or acquittal remains in force, not be liable to  be  tried  again
for the same offence, nor on the same facts for any other offence for  which
a different charge from the one made against him might have been made  under
sub- section (1) of section 221, or for which he might have  been  convicted
under sub-section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards  tried,
with the consent of the State  Government,  for  any  distinct  offence  for
which a separate charge might have been  made  against  him  at  the  former
trial under sub- section (1) of section 220.

(3) A person convicted  of  any  offence  constituted  by  any  act  causing
consequences which, together with such act, constituted a different  offence
from that of which he was convicted, may be afterwards tried for such  last-
mentioned offence, if the consequences had not happened, or were  not  known
to the Court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by  any  acts
may, notwithstanding such acquittal or conviction, be  subsequently  charged
with, and tried for, any other offence constituted by the  same  acts  which
he may have committed if the Court by which  he  was  first  tried  was  not
competent to try the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again  for  the
same offence  except  with  the  consent  of  the  Court  by  which  he  was
discharged or of any other Court to which  the  first-  mentioned  Court  is
subordinate.

(6) Nothing in this section shall affect the provisions  of  section  26  of
the General Clauses Act, 1897, (10 of 1897 )  or  of  section  188  of  this
Code.
Explanation.- The  dismissal  of  a  complaint,  or  the  discharge  of  the
accused, is not an acquittal for the purposes of this section."

                 Having perused Section 300,  we  are  satisfied,  that  the
submission advanced at the hands of the learned counsel for the  respondent,
namely, that Section 300 of the Criminal Procedure Code, will be an  embargo
to obstruct the right of the appellant to file a  second  complaint  against
the respondent, is not justified.  Our above determination is based  on  the
fact, that the  respondent  had  not  been  tried,  in  furtherance  of  the
previous complaint made by the appellant, under Section 376  of  the  Indian
Penal Code.  The contention of the learned counsel for the  appellant,  that
the respondent had been discharged in furtherance of the complaint  made  by
the appellant, without any trial having  been  conducted  against  him  (the
respondent), was not  disputed.  Based  on  the  above  factual  contention,
learned counsel for the appellant  had  placed  emphatic  reliance,  on  the
explanation  under  Section  300  of  the  Criminal  Procedure   Code.   The
explanation  relied  upon,  clearly  mandates  that  the  dismissal   of   a
complaint, or the discharge of an accused, would  not  be  construed  as  an
acquittal, for the purposes of this Section. In this view of the matter,  we
are in agreement with the contention advanced at the hands  of  the  learned
counsel for the appellant. We are of the considered view,  that  proceedings
in the second complaint would not be  barred,  because  no  trial  had  been
conducted against the respondent, in furtherance  of  the  first  complaint.
Having so concluded, it emerges that it is open to the appellant,  to  press
the accusations levelled by her, through her second complaint,  referred  to
above.
                 It is, therefore, that we shall  now  examine  the  present
controversy, with reference to Sections 493 and  494  of  the  Indian  Penal
Code, which admittedly survive.  The contention of the learned  counsel  for
the respondent, with reference to Section 493 of the Indian Penal Code  was,
that the ingredients of the offence under Section 493  were  not  made  out,
even if the factual position, as has been  asserted  by  the  appellant,  is
accepted.   Section  493  of  the  Indian  Penal  Code  is  being  extracted
hereunder:
"493. Cohabitation caused by a man deceitfully inducing a belief  of  lawful
marriage.-Every man who by deceit causes  any  woman  who  is  not  lawfully
married to him to believe that  she  is  lawfully  married  to  him  and  to
cohabit or have sexual  intercourse  with  him  in  that  belief,  shall  be
punished with imprisonment of  either  description  for  a  term  which  may
extend to ten years, and shall also be liable to fine."

      A perusal of the above-extracted provision reveals,  that  to  satisfy
the ingredients thereof, the man concerned should  have deceived the  woman,
to believe the existence of matrimonial ties with  her.  And  based  on  the
aforesaid belief, the man should have cohabited with her.  The  question  to
be determined on the basis of the factual  position,  as  has  been  noticed
hereinabove, is whether in the facts and circumstances of this case,  it  is
possible to accept such deceit, at the hands of the respondent, even  if  it
is accepted for the sake of arguments, that cohabitation  continued  between
the parties between 08.01.1994 till 23.06.1994, i.e.,  from  the  date  when
the respondent was granted an ex-parte decree of divorce (by the  Additional
District Judge, Chandigarh), till  the  date  when  the  respondent  married
Sunita Rani. We are of the considered view, that with the setting  aside  of
the ex-parte decree of divorce dated 08.01.1994 (on 19.02.1996),  it  cannot
be accepted, that there  was  any  break  in  the  matrimonial  relationship
between the parties.  Even  the  complaint  filed  by  the  appellant  under
Section  376  of  the  Indian  Penal  Code  was  not  entertained  (and  the
respondent was discharged), because  it  came  to  be  concluded,  that  the
matrimonial ties between the appellant and  the  respondent  were  restored,
with the setting aside  of  the  ex-parte  decree  of  divorce,  as  if  the
matrimonial relationship had never ceased. In sum and  substance  therefore,
consequent upon the passing of  the  order  dated  19.02.1996  (whereby  the
Additional District Judge, Chandigarh, set aside the ex-parte  decree  dated
08.01.1994), the matrimonial ties between the appellant and the  respondent,
will be deemed to have subsisted during the entire  period  under  reference
(08.01.1994 to 23.06.1994).  In fact, the accusation of  the  appellant,  on
the aforesaid premise,  in  the  first  complaint  filed  by  the  appellant
against the respondent (under Section 376 of the Indian Penal Code) was  not
entertained, and the respondent was discharged, just because  of  the  above
inference.  For exactly the same reason, we are satisfied  that  the  charge
against the respondent is not made out, under  Section  493  of  the  Indian
Penal, because the respondent could not have deceived the appellant  of  the
existence of a "lawful marriage", when  a  lawful  marriage  indeed  existed
between the parties, during the period under reference.
                 So far as the surviving provision, namely, Section  494  of
the Indian Penal Code is concerned, the same  is  compoundable.  During  the
course of hearing, on 08.04.2015, we enquired from the learned  counsel  for
the appellant, whether the  appellant  was  interested  in  compounding  the
cause, since we were made aware of the fact,  that  the  respondent  in  the
meantime had fathered two children, from Sunita  Rani.   This  proposal  was
made by the Court on an oral assertion made at the  behest  of  the  learned
counsel representing the respondent, that the appellant had also  re-married
in the meantime, and that, she had also begotten one son out of  her  second
marriage.
                 Having  obtained  instructions,  learned  counsel  for  the
appellant very fairly acknowledged, the second marriage  of  the  appellant.
He also acknowledged, the factum of the appellant having  begotten   a  son,
from her second marriage.  In the changed scenario, learned counsel for  the
appellant informed this Court, that the appellant had instructed  him,  that
a request may be made to  the  Court,  that  the  appellant  would  have  no
objection to the compounding of the offence under Section 494 of the  Indian
Penal Code, in terms of Section 320 of the Code of Criminal Procedure,  with
the consent of this Court.  The contention of the learned  counsel  for  the
appellant however was, that  the  appellant  should  be  awarded  reasonable
cost, while compounding the offence under Section 494 of  the  Indian  Penal
Code.
                 Having given our thoughtful consideration to the facts  and
circumstances of this case, specially the factual position  as  has  emerged
after the ex-parte  decree  of  divorce  dated  08.01.1994  (passed  by  the
Additional District Judge, Chandigarh) was set aside on 19.02.1996,  we  are
of the view, that the best  course  for  the  parties  is  to  settle  their
dispute amicably.  Section 320 of the Criminal Procedure Code is  an  avenue
available to the parties, for such  resolution.   In  view  of  the  consent
expressed by the appellant to this Court  through  her  counsel,  we  hereby
direct the compounding of complaint made by the appellant with reference  to
Section 494 of the Indian Penal Code.  We direct the  respondent  to  pay  a
sum of Rs.5 lakhs, as compensation to the appellant.  The  respondent  shall
deposit the aforesaid amount in this Court within  two  months  from  today.
It shall be open to the appellant to move an application to the Registry  of
this Court, to withdraw the aforesaid amount.
                 The appeal is disposed of in the above terms.

                                                ..........................J.
                                                                    (JAGDISH
SINGH KHEHAR)





..........................J.
                                 (S.A.BOBDE)
NEW DELHI;
APRIL 09, 2015.

supreme court judgement on divorce case india.

                           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.

          3.       FACTS:

          (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."

                                                             (Emphasis added)

                                                           

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.  

PRESENT CONTROVERSY:

                                                                                      1

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."

                                                                         (Emphasis added)

                                                                 

          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.

                                               .............................J.

                                               (P. SATHASIVAM)

                                                       

                                               .............................J.

                                               (Dr. B.S. CHAUHAN)