Setting Aside Ex-Parte Divorce Decree
ORISSA HIGH COURT
Siddharth Dixit vs Smt. Sujata Dixit on 11 August, 2010
L.MOHAPATRA,
J & C.R.DASH, J.
W.P.(C)
NO.14412 OF 2008 ( Decided on 11.08.2010).
SIDDHARTH
DIXIT ........... Petitioner.
.Vrs.
SMT.
SUJATA DIXIT ............ Opp.Party.
CIVIL
PROCEDURE CODE -1908(ACTNO. 5 OF 1908) ORDER-9 RULE-13
For
Petitioner - M/s. Yeesan Mohanty, B.C.Mohanty & G.N.Dash.
For
Opp.party - M/s. S.K.Padhi, M.Padhi, G.Misra, & A.Das.
M/s.
G.P.Dutta, M.Dutta, A.Ghose, S.K.Mohanty
&
B.K.Sahoo.
L.MOHAPATRA,
J. This writ application is directed against the order dated 2.9.2008 passed by
the learned Judge, Family Court, Rourkela in Misc.Case No.5 of 2008 filed under
Order 9, Rule 13 of the Code of Civil Procedure( in short 'C.P.C.') for setting
aside the ex parte decree of divorce.
2. The
petitioner and the opposite party got married on 18.2.1991 as per Hindu rites
and customs at Kolkata. Both of them were blessed with two children, a son
namely, Siddhant in the year 1994 and a daughter namely, Shraddha in the year
1999. There were differences between both of them during this period and
subsequently the relationship became such that they had to remain away from
each other. The petitioner thereafter filed Civil Proceeding No.227 of 2005 in
the court of the learned Judge, Family Court, Rourkela seeking for divorce.
Notice was issued to the opposite party but, the same could not be served.
Thereafter, steps for service of notice as provided under Order 5, Rule 20
C.P.C. were taken and in spite of paper publication, the opposite party having
not appeared in the case, an ex parte
decree of
divorce was passed on 9.3.2006. After waiting for the appeal period, the
petitioner contracted second marriage with another woman. The opposite party
coming to know about the ex parte decree, filed Misc.Case No.5 of 2008 before
the learned Judge, Family Court, Rorurkela under Order 9, Rule 13 C.P.C. to set
aside the ex parte decree. In the impugned order, the learned Judge, Family
Court having set aside the ex parte decree, this writ application has been
filed challenging the same.
3. As it
appears from the discussion made by the learned Judge, Family Court in
paragraphs 3, 4, 5 and 6 of the impugned order, after filing of the Civil
Proceeding, notice was issued to the opposite party, who was staying at Kolkata
then. Notice could not be served due to want of time and an application was
filed by the petitioner for substituted service under Order 5, Rule 20 C.P.C..
The said petition having been allowed, notice was published in the 'Times of
India'. In spite of publication of notice, opposite party having not appeared,
an ex parte decree was passed by the court. In the application filed under
Order 9, Rule 13 C.P.C., the learned Judge, Family Court came to hold that
there was no material before the court to come to a conclusion that the
opposite party was avoiding service of notice on her and in absence of such a
finding, the application filed by the petitioner under Order 5, Rule 20 could
not have been allowed and, therefore, the substituted service made by the
petitioner by way of paper publication cannot be held to be a valid service of
notice and, accordingly, the ex parte decree of divorce is liable to be set
aside.
4. Shri
Yeesan Mohanty, learned Senior Counsel appearing for the petitioner assailed
the impugned order stating that after the ex parte decree was passed, the
petitioner waited for the appeal period to be over and, thereafter married for
the second time. Under these circumstances, application under Order 9, Rule 13
C.P.C. could not have been allowed and the only course open to the opposite
party was to pray for permanent alimony. In this connection, reliance is placed
by the learned Senior Counsel on a decision of the Allahabad High Court in the
case of S.P.Srivastva Vrs. Smt. Premlata Srivastava reported in A.I.R. 1980
Allahabad 336. In the said reported case, the husband filed a suit for divorce
under Section 13 of the Hindu Marriage Act. The suit was decreed ex parte on
2.6.1973. The wife filed an application under Order 9, Rule 13 C.P.C. on
15.4.1976 for setting aside the ex parte decree on the allegation that she had
never been served with summons on divorce petition. The husband had contracted
a second marriage with another woman on 14.4.1976. The trial court having
allowed the application filed by the wife under Order 9, Rule 13 C.P.C., the
matter was brought before the High Court. The High Court on consideration of
different orders passed by the trial court came to a finding that there were
some irregularities in service of summons but that would not be a ground for
setting aside the ex parte decree and allowed the revision.
5. Though
the above decision is silent about the submission of Shri Y. Mohanty, learned
Senior Counsel for the petitioner that the only option available to the
opposite is to claim for permanent alimony, another decision of Rajasthan High
Court supports such a submission. In the case of Surrender Kumar Vrs. Kiran
Devi reported in AIR 1997 Rajasthan 63, it was held that after an ex parte
decree of divorce is passed, if the husband has contracted a second marriage after
expiry of appeal period, the petition filed under Order 9, Rule 13 C.P.C. at
the instance of the wife is not maintainable and the wife can file an
application under Section 25 of the Hindu Marriage Act claiming permanent
alimony.
6. Shri
Dutta, learned counsel appearing for the opposite party submitted that the
first notice issued by the court admittedly was not served on the opposite
party. The subsequent publication of notice in the 'Times of India' in
pursuance of an order passed by the court for substituted service was on a date
on which the opposite party was in China and, therefore, had no scope to know
about publication of such notice. This submission of the learned counsel, Shri
Dutta was seriously opposed by the learned counsel appearing for the petitioner.
There is no material before us to show that on the date of publication of
notice in the 'Times of India', opposite party was in China. This point was
also never taken before the trial court and had such a point been taken, the
parties would have been directed to adduce evidence in this regard. Therefore,
we decline to entertain a disputed question of fact raised for the first time
in this writ application.
7. So far
as finding of the learned Judge, Family Court in setting aside the ex parte
decree is concerned, we are of the view that such a finding is not sustainable.
Admittedly, notice could not be served on the opposite party on the first
occasion due to want of time. Therefore, an application was filed by the
petitioner under Order 5, Rule 20 C.P.C. and permission having been granted by
the court, notice was published in a widely distributed English Newspaper. The
court being satisfied with regard to compliance of requirement of Order 5 Rule
20 C.P.C., had permitted the petitioner to take steps for substituted service
by way of publication in a widely distributed English Newspaper. Therefore, it
is not open for the trial court now to say that grant of permission to the
petitioner at that stage was not justified. The ex parte order has not been set
aside in any other ground by the trial court in the impugned order.
8. For
the reasons stated above, we are of the view that the ground on which the trial
court has set aside the ex parte decree is not sustainable and, accordingly,
the impugned order is set aside. The petitioner may approach the trial court in
an application under Section 25 of the Hindu Marriage Act for permanent alimony
in view of the changed circumstances and in the event, such an application is
filed, the trial court shall permit the parties to adduce evidence and
determine the permanent alimony on the basis of such evidence.
The writ
application is accordingly disposed of.
Writ
petition disposed of
