BENCH:
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
CITATION:
1992
SCR (3) 81 1992 SCC (3) 116
JT
1992 (4) 28 1992 SCALE (1)1079
ACT:
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.
HEADNOTE:
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
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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
83
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
84
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.
JUDGMENT:
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.
85
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
86
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
88
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
90
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.
91
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.
N.V.K.
Appeal allowed.
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
Vs.
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
