Ex Parte Divorce decree in India.

          Ex-Parte Divorce Decree in India.                  


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.




    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.







------------------------------------------------------------------------------------------------------------------------------

                                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)

HOW TO GET A DIVORCE BEFORE THE PERIOD OF ONE YEAR IN INDIA.

Section 14 of Hindu marriage Act,1955.

"(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, 1[ unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage: Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in. that behalf, allow a petition to be presented 1[ before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the 1[ expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the 1[ expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed."


IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : HINDU MARRIAGE ACT

Judgment delivered on: 03.08.2011

MAT.APP.50/2011


Shri Arvind Kumar ……Appellant
Through: Ms.Deepika Marwaha, Advocate

 Vs.

Smt.Nirmala Bharti @ Neha ……Respondent
Through: None.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.:


1. By this appeal filed under Section 28 of the Hindu Marriage Act, the
appellant seeks to challenge the order dated 13.06.2011 passed by the Principal
Judge, Family Courts, Dwarka, New Delhi whereby the application of the appellant under
Section 14 of the Hindu Marriage Act was dismissed.

2. Assailing the said order, Ms.Deepika Marwaha, counsel appearing for the
appellant submits that the learned Family Court has passed the impugned order
completely ignoring the proviso of Section 14 of the Hindu Marriage Act and has also not
properly appreciated the ratio of judgments in the case of Anil Kumar Jain vs Maya Jain
(2009) 10 SCC 415, Manish Goel vs. Rohini Goel (2010) 4 SCC 393 and also in the case
of Mohan Saili & Sonali Singh Vs. Nil 2010 (175) DLT 259.

3. I have heard learned counsel for the appellant.

4. Nobody is present on behalf of the respondent despite service of notice.
The respondent is accordingly proceeded ex parte.

5. As per the facts disclosed in the present appeal, the appellant got married
to the respondent on 12.03.2011 according to Hindu rites and ceremonies. A petition for
divorce was filed by the appellant against the respondent on 08.06.2011 on the ground of
cruelty under Section 13 (1) (ia) of the Hindu Marriage Act. Along with the said petition,
the appellant had also filed an application under Section 14 of the Hindu Marriage Act
seeking leave of the court to file the said petition before the period of one year from the date of marriage. The said application of the appellant was dismissed by the learned trial
court vide the impugned order dated 13.06.2011.

6. The reason to dismiss the said application of the appellant taken by the
learned trial court is that it has no statutory power to condone the period of one year
prescribed under Section 14 of the said Act for filing the divorce petition. For arriving at
such a conclusion, the court has placed reliance on the two judgments of the Hon’ble
Supreme Court in the case of Manish Goel (supra) and Anil Kumar Jain (supra). This
Court is quite amazed to read the impugned order passed by the learned Principal Judge
as the learned Judge has not even bothered to just have a bare look at the said legal
provision i.e. Section 14 of the Hindu Marriage Act. Evidently, proviso of the said
section gives a right to the petitioner to move an application in accordance with the rules
framed by the High Court to seek leave of the court to file the petition before the expiry
of one year period from the date of the marriage on the ground of exceptional hardship or
on account of exceptional depravity on the part of the respondent and on the presentation
of such an application the discretion has been given to the court to allow such an
application even before the expiry of period of one year. In none of the said two
judgments referred to by the learned trial court, Section 14 of the Hindu Marriage Act
was under discussion. The aforesaid cases were dealing with the issue of waiver of
statutory period of six months as envisaged under Section 13-B (1) & (2) of the Hindu
Marriage Act. The learned trial court did not realize that the proviso of Section 14 itself
gives a remedy to the petitioner to seek waiver of the said period of one year and for
seeking such waiver the petitioner approaching the court has to satisfy one of the two
conditions i.e. (1) because of exceptional hardship to the petitioner or (2) because of
exceptional depravity on the part of the respondent. For better appreciation, Section 14 of
the Hindu Marriage Act is reproduced as under:-
“14. No petition for divorce to be presented within one year of marriage.-

(1) Notwithstanding anything contained in this Act, it shall not be competent for any
court to entertain any petition for dissolution of 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:

 Provided that the court may, upon application made to it in accordance
with such rules as may be made by the High Court in that behalf, allow a petition to be
presented [before one year has elapsed] since the date of the marriage on the ground that
the case is one of exceptional hardship to the petitioner or of exceptional depravity on the
part of the respondent, but if it appears to the Court at the hearing of the petition that the
petitioner obtained leave to present the petition by any misrepresentation or concealment
of the nature of the case, the court may, if it pronounces a decree, do so subject to the
condition that the decree shall not have effect until after the [expiry of one year] from the
date of the marriage or may dismiss the petition without prejudice to any petition which
may be brought after the [expiration of the said one year] upon the same or substantially
the same facts as those alleged in support of the petition so dismissed.”
 On a plain reading of the said section, it is apparent that the said section is on the statute
book with a specific purpose of preventing hasty recourse to judicial process for
dissolution of marriage and for the parties to aim at reconciliation and make effort to save
their marriage. However, it also cannot be disregarded that the proviso to the said section
gives the discretion to the court to allow the party to present a petition for divorce before
expiry of one year period from the date of marriage on being satisfied that the case is of
extreme depravity on the part of the respondent or extreme hardship to the petitioner.
Even sub section (2) of section 14 presupposes the grant of leave for presentation of
petition before the expiry of one year period. Hence, it cannot be said that the
presentation of petition of divorce before the expiry of one year is completely barred as
the proviso comes to the rescue of exceptional cases giving them room and it is a decision
to be made by the court on the merits of the case. Hence, the learned trial court fell in
grave error in proceeding on the premise that the petition cannot be permitted to be
presented before period of one year from the date of marriage.

7. There is no need to re-emphasise that once the provision of law itself
exists on any statute book, the same cannot be ignored by any of the Courts. The learned
trial court has clearly passed the impugned order in a perfunctory manner without even
caring to look at the said provision. The learned trial court has also committed yet another
mistake in placing reliance on the said two judgments of the Hon’ble Apex Court and
also of this Court in Mohan Saili (supra) which are totally inapplicable to the issue in
controversy, as the learned trial court was not dealing with the issue of granting waiver of
the statutory period of six months for entertaining second motion petition under Section
13-B (2) of the said Act, where the Apex Court in the said cases has taken a view that it is
only in the exercise of extra ordinary power under Article 142 of the Constitution of
India, the Supreme Court can grant the divorce under Section 13-B (2) of the Hindu
Marriage Act without even waiting for the statutory period of six months, while none of
the other courts can exercise such similar power. Although in the case of Neeti Malviya
Vs. Rakesh Malviya (2010) 6 SCC 413 the Supreme Court has taken a view that even it
also cannot waive the said statutory period of six months in the exercise of its extra
ordinary power under Article 142 of the Constitution of India and the matter is now
pending consideration before the larger Bench of the Supreme Court. Any how that is not
the subject matter of controversy here and as already discussed above, under the proviso
of Section 14 of the Hindu Marriage Act such an application seeking waiver of period of
one year as prescribed in the sub-section (1) of Section 14 of the Hindu Marriage Act can
be waived and dispensed with on the court being satisfied on the petitioner making out a
case for the grant of such waiver.

8. In the light of the above discussion, the present appeal deserves to be
allowed and the same is accordingly allowed. The impugned order dated 13.06.2011 is
set aside and the matter is remanded back to the learned Family Courts, Dwarka, New
Delhi. The learned trial court is directed to decide the application of the petitioner filed
by him under Section 14 of the Hindu Marriage Act on merit within a period of one
month from the date of this order.
 9. Parties are directed to appear before the learned trial court on 29th
August, 2011.

 Sd/-
KAILASH GAMBHIR, J 

Marriage not consummated and filed a case u/s 498-A IPC-Ground of Cruelty.

Marriage not consummated  and filed a case u/s 498-A IPC-Ground of Cruelty.

"The appellant-husband is working as Assistant Registrar in the Andhra Pradesh High Court. The marriage between the appellant-husband and the respondent-wife was solemnized on 25/4/1999 as per Hindu rites and customs. Unfortunately, on the very next day disputes arose between the elders on both sides which resulted in their abusing each other and hurling chappals at each other.

As a consequence, on 27/4/1999, the newly married couple got separated without consummation of the marriage and started living separately. On 4/10/1999, the respondent-wife lodged a criminal complaint against the appellant-husband before the Women Protection Cell alleging inter alia that the appellant-husband is harassing her for more dowry. This complaint is very crucial to this case."

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1794 OF 2013

(Arising out of Special Leave Petition (Civil) No. 4782 of 2007)

K. SRINIVAS RAO … APPELLANT

Versus

D.A. DEEPA … RESPONDENT

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. This appeal, by special leave, has been filed by the appellant- husband, being aggrieved by the judgment and order dated 8/11/2006 passed by the Andhra Pradesh High Court in Civil Miscellaneous Appeal No.797/03, setting aside the decree of divorce granted in his favour.

3. The appellant-husband is working as Assistant Registrar in the Andhra Pradesh High Court. The marriage between the appellant-husband and the respondent-wife was solemnized on 25/4/1999 as per Hindu rites and customs. Unfortunately, on the very next day disputes arose between the elders on both sides which resulted in their abusing each other and hurling chappals at each other. As a consequence, on 27/4/1999, the newly married couple got separated without consummation of the marriage and started living separately. On 4/10/1999, the respondent-wife lodged a criminal complaint against the appellant-husband before the Women Protection Cell alleging inter alia that the appellant-husband is harassing her for more dowry. This complaint is very crucial to this case. We shall advert to it more in detail a little later. Escalated acrimony led to complaints and counter complaints. The respondent-wife filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the Family Court, Secunderabad. The appellant-husband filed a counter-claim seeking dissolution of marriage on the ground of cruelty and desertion under Section 13(1)(i-a) and (b) of the Hindu Marriage Act, 1955.

4. The Family Court while dismissing the petition for restitution of conjugal rights and granting decree of divorce inter alia held that the respondent-wife stayed in the appellant-husband’s house only for a day, she admitted that she did not have any conversation with anyone and hence any amount of oral evidence adduced by her will not support her plea that she was harassed and driven out of the house; that the story that the appellant- husband made a demand of dowry of Rs.10,00,000/- is false; that by filing false complaint against the appellant-husband and his family, alleging offence under Section 498-A of the IPC in the Metropolitan Magistrate Court, Hyderabad and by filing complaints against the appellant-husband in the High Court where he is working, the respondent-wife caused mental cruelty to the appellant-husband and that reunion was not possible. The Family Court directed the appellant-husband to repay Rs.80,000/- given by the respondent-wife’s father to him with interest at 8% per annum from the date of the marriage till payment.

5. By the impugned judgment the High Court allowed the appeal carried by the respondent-wife against the said judgment and set aside the decree of divorce granted in favour of the appellant-husband. The High Court inter alia observed that the finding of the Family Court that lodging a complaint with the police against the appellant-husband amounts to cruelty is perverse because it is not a ground for divorce under the Hindu Marriage Act, 1955. The High Court further held that the appellant-husband and the respondent-wife did not live together for a long time and, therefore, the question of their treating each other with cruelty does not arise. According to the High Court, the conclusion that the respondent-wife caused mental cruelty to the appellant-husband is based on presumptions and assumptions.

6. Mr. Jayanth Muth Raj, learned counsel for the appellant-husband assailed the conduct of the respondent-wife and submitted that it disentitles her from getting any relief from this Court. Counsel took us through the complaint lodged by the respondent-wife with the Superintendent of Police, Women Protection Cell, Hyderabad, making defamatory allegations against the mother of the appellant-husband and drew our attention to the various legal proceedings initiated by her against the appellant-husband and his family. Counsel submitted that she also lodged complaints with the High Court asking for the removal of the appellant-husband from his job. Counsel submitted that by lodging such false complaints the respondent-wife caused extreme mental cruelty to the appellant-husband. Counsel submitted that the High Court fell into a grave error in observing that because the respondent-wife did not live with the appellant-husband for long she could not have caused mental cruelty to him. Counsel submitted that this observation is erroneous and is contrary to the law laid down by this Court. False and defamatory allegations made in the pleadings can also cause mental cruelty. Counsel submitted that the marriage has irretrievably broken down and, therefore, it is necessary to dissolve it by a decree of divorce. In support of his submissions counsel placed reliance on G.V.N. Kameswara Rao vs. G. Jabilli[1], Parveen Mehta vs. Inderjit Mehta[2], Vijayakumar R. Bhate vs. Neela Vijayakumar Bhate[3], Durga Prasanna Tripathy vs. Arundhati Tripathy[4], Naveen Kohli vs. Neelu Kohli[5] and Samar Ghosh vs. Jaya Ghosh[6].

7. Mr. D. Rama Krishna Reddy, learned counsel for the respondent-wife, on the other hand, submitted that the father of the respondent-wife had given Rs.80,000/- and 15 tolas of gold as dowry to the appellant-husband’s family. However, they demanded additional cash of Rs.10,00,000/-. Because this demand could not be met, the respondent-wife and her family was humiliated and ill-treated. Therefore, the parents of the respondent-wife had to return to their house along with her immediately after marriage. The father of the respondent-wife made efforts to talk to the appellant- husband’s family, but, they did not respond to his efforts. They persisted with their demands and, therefore, the respondent-wife had no alternative but to lodge complaint against them under Section 498-A of the IPC before the Metropolitan Magistrate, Hyderabad. The appellant-husband thereafter gave a false assurance that he will not harass her and, therefore, she withdrew the complaint and went to the matrimonial house. However, the approach of the appellant-husband and his family did not change. She had to therefore renew her complaint. Counsel submitted that only because of the obstinate and uncompromising attitude of the appellant-husband and his family that the respondent-wife had to take recourse to court proceedings. Counsel submitted that the respondent-wife values the matrimonial tie. She wants to lead a happy married life with the appellant-husband. She had, therefore, filed a petition for restitution of conjugal rights which should have been allowed by the Family Court. Counsel submitted that after properly evaluating all the circumstances the High Court has rightly set aside the decree of divorce and granted a decree of restitution of conjugal rights. The High Court’s judgment, therefore, merits no interference.

8. The matrimonial dispute started with a quarrel between the elders of both sides in which initially the appellant-husband and the respondent-wife were not involved. The ego battle of the elders took an ugly turn. Parties were dragged to the court and the inevitable happened. The relations between the two families got strained. With a fond hope that we could bring about a settlement we requested the counsel to talk to the parties and convey our wishes that they should bury the hatchet and start living together. We also tried to counsel them in the court. The respondent-wife appears to be very keen to go back to the matrimonial home and start life afresh, but the appellant-husband is adamant. He conveyed to us through his counsel that by filing repeated false complaints against him and his family the respondent-wife has caused extreme cruelty to them and therefore it will not be possible to take her back. In view of this we have no option but to proceed with the case.

9. The High Court has taken a view that since the appellant-husband and the respondent-wife did not stay together, there is no question of their causing cruelty to each other. The High Court concluded that the conclusion drawn by the Family Court that the respondent-wife caused mental cruelty to the appellant-husband is erroneous. We are unable to agree with the High Court.

10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnization of the marriage, treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term ‘cruelty’. Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental.

11. In Samar Ghosh this Court set out illustrative cases where inference of ‘mental cruelty’ can be drawn. This list is obviously not exhaustive because each case presents it’s own peculiar factual matrix and existence or otherwise of mental cruelty will have to be judged after applying mind to it. We must quote the relevant paragraph of Samar Ghosh. We have reproduced only the instances which are relevant to the present case.

“101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) xxx xxx xxx

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) xxx xxx xxx

(viii) xxx xxx xxx

(ix) xxx xxx xxx

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) xxx xxx xxx

(xii) xxx xxx xxx

(xiii) xxx xxx xxx

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

It is pertinent to note that in this case the husband and wife had lived separately for more than sixteen and a half years. This fact was taken into consideration along with other facts as leading to the conclusion that matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the wife. Similar view was taken in Naveen Kohli.

12. In V. Bhagat v. D. Bhagat[7] in the divorce petition filed by the husband the wife filed written statement stating that the husband was suffering from mental hallucination, that his was a morbid mind for which he needs expert psychiatric treatment and that he was suffering from ‘paranoid disorder’. In cross-examination her counsel put several questions to the husband suggesting that several members of his family including his grandfather were lunatics. This court held that these assertions cannot but constitute mental cruelty of such a nature that the husband cannot be asked to live with the wife thereafter. Such pleadings and questions it was held, are bound to cause immense mental pain and anguish to the husband. In Vijaykumar Bhate disgusting accusations of unchastity and indecent familiarity with a neighbour were made in the written statement. This Court held that the allegations are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous to live with her husband. In Naveen Kohli the respondent-wife got an advertisement issued in a national newspaper that her husband was her employee. She got another news item issued cautioning his business associates to avoid dealing with him. This was treated as causing mental cruelty to the husband.

13. In Naveen Kohli the wife had filed several complaints and cases against the husband. This Court viewed her conduct as a conduct causing mental cruelty and observed that the finding of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable.

14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.

15. We shall apply the above principles to the present case. Firstly, it is necessary to have a look at the legal proceedings initiated by both sides against each other. The facts on record disclose that after the marriage, due to some dispute which arose between the elders, both sides abused and virtually attacked each other. The respondent-wife was taken by her parents to their house. According to the respondent-wife, her father made efforts to bring about an amicable settlement but the other side did not respond favourably and, therefore, on 4/10/1999 she lodged a complaint with the Superintendent of Police, Women Protection Cell against the appellant-husband and members of his family. In our opinion, this complaint is, to a large extent, responsible for widening the rift between the parties. In this complaint, after alleging ill-treatment and harassment for dowry, it is alleged that mother of the appellant-husband asked the respondent-wife to sleep with the father of the appellant- husband. When she was cross-examined in the Family Court during the hearing of her petition for restitution of conjugal rights the respondent-wife admitted that she had lodged the complaint. PW-2 her mother, in her cross- examination stated that though they had asked her not to lodge the complaint, the respondent-wife lodged it. She told them that she had lodged the complaint because the appellant-husband was not listening to her. Thus, it appears that this complaint was lodged out of frustration and anger and was a reaction to the appellant-husband’s refusal to live with her. It was, perhaps, felt by her that because of the pressure of such a complaint the appellant-husband would take her back to his house. Far from helping the respondent-wife, the complaint appears to have caused irreparable harm to her. It increased the bitterness. Perhaps, the respondent-wife was misguided by someone. But, such evidence is not on record. Even in this court, this complaint appears to us to be a major factor amongst others impeding settlement. Pursuant to the said complaint, Crime No.8/2000 was registered by C.I.D., Hyderabad, in the Metropolitan Magistrate (Mahila Court), Hyderabad against the appellant-husband and his family under Section 498-A of the IPC. It is the respondent-wife’s case that the appellant-husband gave an assurance before the police that he will not harass her. She, therefore, withdrew the complaint. The police then filed a closure report. According to the respondent-wife, the appellant- husband did not abide by the promise made by him and, therefore, she filed a protest petition. The Magistrate Court, Hyderabad, then, took cognizance of the case and renumbered the case as C.C.No.62/2002.

16. In the meantime, the respondent-wife filed O.P.No.88/2001 in the Family Court, Secunderabad, for restitution of conjugal rights. The appellant-husband filed a counter claim for divorce on 27/12/2002. The Family Court dismissed the petition for restitution of conjugal rights and allowed the counter claim for divorce filed by the appellant-husband. The respondent-wife challenged the Family Court judgment in the High Court. On 8/12/2006 the High Court reversed the Family Court’s order and allowed the petition for restitution of conjugal rights. The present appeal is filed by the appellant-husband against the said judgment.

17. According to the respondent-wife, on 17/9/2007 when she, along with her mother, came out of the court after a case filed by her against the appellant-husband was adjourned, the appellant-husband beat her mother and kicked her on her stomach. Both of them received injuries. She, therefore, filed complaint for the offence punishable under Section 324 of the IPC against the appellant-husband (C.C.No. 79/2009). It may be stated here that on 19/10/2009 the appellant-husband was acquitted in this case.

18. On 24/6/2008 the judgment was delivered by Additional Chief Metropolitan Magistrate, Hyderabad in C.C.No. 62/2002. The appellant- husband was convicted under Section 498-A of the IPC and was sentenced to undergo six months simple imprisonment. He and his parents were acquitted of the offences under the Dowry Prohibition Act. His parents were acquitted of the offence under Section 498-A of the IPC. After this judgment the respondent-wife and her parents filed a complaint in the High Court saying that since the appellant-husband was convicted he should be dismissed from service. Similar letters were sent to the High Court by the maternal uncle of the respondent-wife.

19. On 14/7/2008 the appellant-husband filed Criminal Appeal No.186/2008 challenging his conviction under Section 498-A of the IPC before the Metropolitan Sessions Judge. It is pertinent to note that the respondent- wife filed Criminal Appeal No.1219/2008 in the High Court questioning the acquittal of the appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A of the IPC. This appeal is pending in the High Court. Not being content with this, the respondent-wife filed Criminal Revision Case No.1560/2008 in the High Court seeking enhancement of punishment awarded to the appellant-husband for offence under Section 498-A of the IPC.

20. According to the appellant-husband on 6/12/2009 the brother of the respondent-wife came to their house and attacked his mother. His mother filed a complaint and the police registered a complaint under Section 354 of the IPC. The brother of the respondent-wife also lodged a complaint and an offence came to be registered. Both the cases are pending.

21. On 29/6/2010 Criminal Appeal No. 186/2010 filed by the appellant- husband challenging his conviction for the offence under Section 498-A of the IPC was allowed by the Metropolitan Sessions Judge and he was acquitted. The respondent-wife has filed criminal appeal in the High Court challenging the said acquittal which is pending.

22. We need to now see the effect of the above events. In our opinion, the first instance of mental cruelty is seen in the scurrilous, vulgar and defamatory statement made by the respondent-wife in her complaint dated 4/10/1999 addressed to the Superintendent of Police, Women Protection Cell. The statement that the mother of the appellant-husband asked her to sleep with his father is bound to anger him. It is his case that this humiliation of his parents caused great anguish to him. He and his family were traumatized by the false and indecent statement made in the complaint. His grievance appears to us to be justified. This complaint is a part of the record. It is a part of the pleadings. That this statement is false is evident from the evidence of the mother of the respondent-wife, which we have already quoted. This statement cannot be explained away by stating that it was made because the respondent-wife was anxious to go back to the appellant-husband. This is not the way to win the husband back. It is well settled that such statements cause mental cruelty. By sending this complaint the respondent-wife has caused mental cruelty to the appellant- husband.

23. Pursuant to this complaint, the police registered a case under Section 498-A of the IPC. The appellant-husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the respondent-wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the respondent-wife filed a protest petition. The trial court took cognizance of the case against the appellant-husband and his parents (CC No. 62/2002). What is pertinent to note is that the respondent-wife filed criminal appeal in the High Court challenging the acquittal of the appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A of the IPC. She filed criminal revision seeking enhancement of the punishment awarded to the appellant-husband for the offence under Section 498-A of the IPC in the High Court which is still pending. When the criminal appeal filed by the appellant-husband challenging his conviction for the offence under Section 498-A of the IPC was allowed and he was acquitted, the respondent-wife filed criminal appeal in the High Court challenging the said acquittal. During this period respondent-wife and members of her family have also filed complaints in the High Court complaining about the appellant-husband so that he would be removed from the job. The conduct of the respondent- wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the appellant-husband, in filing appeal questioning the acquittal of the appellant-husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the appellant- husband.

24. In our opinion, the High Court wrongly held that because the appellant-husband and the respondent-wife did not stay together there is no question of the parties causing cruelty to each other. Staying together under the same roof is not a pre-condition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse’s life miserable. This is what has happened in this case.

25. It is also to be noted that the appellant-husband and the respondent- wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh, if we refuse to sever the tie, it may lead to mental cruelty.

26. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.

27. In V. Bhagat this Court noted that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not in sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of mental cruelty this Court observed that irretrievable breakdown of marriage is not a ground by itself, but, while scrutinizing the evidence on record to determine whether the grounds alleged are made out and in determining the relief to be granted the said circumstance can certainly be borne in mind. In Naveen Kohli, where husband and wife had been living separately for more than 10 years and a large number of criminal proceedings had been initiated by the wife against the husband, this Court observed that the marriage had been wrecked beyond the hope of salvage and public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. It is important to note that in this case this Court made a recommendation to the Union of India that the Hindu Marriage Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.

28. In the ultimate analysis, we hold that the respondent-wife has caused by her conduct mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court the respondent-wife expressed that she wants to go back to the appellant-husband, but, that is not possible now. The appellant-husband is not willing to take her back. Even if we refuse decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellant-husband because a lot of bitterness is created by the conduct of the respondent-wife.

29. In Vijay Kumar, it was submitted that if the decree of divorce is set aside, there may be fresh avenues and scope for reconciliation between parties. This court observed that judged in the background of all surrounding circumstances, the claim appeared to be too desolate, merely born out of despair rather than based upon any real, concrete or genuine purpose or aim. In the facts of this case we feel the same.

30. While we are of the opinion that decree of divorce must be granted, we are alive to the plight of the respondent-wife. The appellant-husband is working as an Assistant Registrar in the Andhra Pradesh High Court. He is getting a good salary. The respondent-wife fought the litigation for more than 10 years. She appears to be entirely dependent on her parents and on her brother, therefore, her future must be secured by directing the appellant-husband to give her permanent alimony. In the facts and circumstance of this case, we are of the opinion that the appellant-husband should be directed to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) to the respondent-wife as and by way of permanent alimony. In the result, the impugned judgment is quashed and set aside. The marriage between the appellant-husband - K. Srinivas Rao and the respondent-wife - D.A. Deepa is dissolved by a decree of divorce. The appellant-husband shall pay to the respondent-wife permanent alimony in the sum of Rs.15,00,000/-, in three instalments. The first instalment of Rs.5,00,000/- (Rupees Five Lakhs only) should be paid on 15/03/2013 and the remaining amount of Rs.10,00,000/- (Rupees Ten Lakhs only) should be paid in instalments of Rs.5,00,000/- each after a gap of two months i.e. on 15/05/2013 and 15/07/2013 respectively. Each instalment of Rs.5,00,000/- be paid by a demand draft drawn in favour of the respondent-wife “D.A. Deepa”.

31. Before parting, we wish to touch upon an issue which needs to be discussed in the interest of victims of matrimonial disputes. Though in this case, we have recorded a finding that by her conduct, the respondent- wife has caused mental cruelty to the appellant-husband, we may not be understood, however, to have said that the fault lies only with the respondent-wife. In matrimonial disputes there is hardly any case where one spouse is entirely at fault. But, then, before the dispute assumes alarming proportions, someone must make efforts to make parties see reason. In this case, if at the earliest stage, before the respondent-wife filed the complaint making indecent allegation against her mother-in-law, she were to be counselled by an independent and sensible elder or if the parties were sent to a mediation centre or if they had access to a pre- litigation clinic, perhaps the bitterness would not have escalated. Things would not have come to such a pass if, at the earliest, somebody had mediated between the two. It is possible that the respondent-wife was desperate to save the marriage. Perhaps, in desperation, she lost balance and went on filing complaints. It is possible that she was misguided. Perhaps, the appellant-husband should have forgiven her indiscretion in filing complaints in the larger interest of matrimony. But, the way the respondent-wife approached the problem was wrong. It portrays a vindictive mind. She caused extreme mental cruelty to the appellant-husband. Now the marriage is beyond repair.

32. Quite often, the cause of the misunderstanding in a matrimonial dispute is trivial and can be sorted. Mediation as a method of alternative dispute resolution has got legal recognition now. We have referred several matrimonial disputes to mediation centres. Our experience shows that about 10 to 15% of matrimonial disputes get settled in this Court through various mediation centres. We, therefore, feel that at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc. are preeminently fit for mediation. Section 9 of the Family Courts Act enjoins upon the Family Court to make efforts to settle the matrimonial disputes and in these efforts, Family Courts are assisted by Counsellors. Even if the Counsellors fail in their efforts, the Family Courts should direct the parties to mediation centres, where trained mediators are appointed to mediate between the parties. Being trained in the skill of mediation, they produce good results.

33. The idea of pre-litigation mediation is also catching up. Some mediation centres have, after giving wide publicity, set up “Help Desks” at prominent places including facilitation centres at court complexes to conduct pre-litigation mediation. We are informed that in Delhi Government Mediation and Conciliation Centres, and in Delhi High Court Mediation Centre, several matrimonial disputes are settled. These centres have a good success rate in pre-litigation mediation. If all mediation centres set up pre-litigation desks/clinics by giving sufficient publicity and matrimonial disputes are taken up for pre-litigation settlement, many families will be saved of hardship if, at least, some of them are settled.

34. While purely a civil matrimonial dispute can be amicably settled by a Family Court either by itself or by directing the parties to explore the possibility of settlement through mediation, a complaint under Section 498- A of the IPC presents difficulty because the said offence is not compoundable except in the State of Andhra Pradesh where by a State amendment, it has been made compoundable. Though in Ramgopal & Anr. v. State of Madhya Pradesh & Anr.[8], this Court requested the Law Commission and the Government of India to examine whether offence punishable under Section 498-A of the IPC could be made compoundable, it has not been made compoundable as yet. The courts direct parties to approach mediation centres where offences are compoundable. Offence punishable under Section 498-A being a non-compoundable offence, such a course is not followed in respect thereof. This Court has always adopted a positive approach and encouraged settlement of matrimonial disputes and discouraged their escalation. In this connection, we must refer to the relevant paragraph from G.V. Rao v. L.H.V. Prasad & Ors.[9], where the complaint appeared to be the result of matrimonial dispute, while refusing to interfere with the High Court’s order quashing the complaint, this court made very pertinent observations, which read thus:

“12. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “cases” in different courts.”

In B.S. Joshi & Ors. v. State of Haryana & Anr.[10], after referring to the above observations, this Court stated that the said observations are required to be kept in view by courts while dealing with matrimonial disputes and held that complaint involving offence under Section 498-A of the IPC can be quashed by the High Court in exercise of its powers under Section 482 of the Code if the parties settle their dispute. Even in Gian Singh v. State of Punjab & Anr.[11], this Court expressed that certain offences which overwhelmingly and predominantly bear civil flavour like those arising out of matrimony, particularly relating to dowry, etc. or the family dispute and where the offender and the victim had settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may quash the criminal proceedings if it feels that by not quashing the same, the ends of justice shall be defeated.

35. We, therefore, feel that though offence punishable under Section 498- A of the IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. This is, obviously, not to dilute the rigour, efficacy and purport of Section 498-A of the IPC, but to locate cases where the matrimonial dispute can be nipped in bud in an equitable manner. The judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law. During mediation, the parties can either decide to part company on mutually agreed terms or they may decide to patch up and stay together. In either case for the settlement to come through, the complaint will have to be quashed. In that event, they can approach the High Court and get the complaint quashed. If however they chose not to settle, they can proceed with the complaint. In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest. Obviously, the High Court will quash the complaint only if after considering all circumstances it finds the settlement to be equitable and genuine. Such a course, in our opinion, will be beneficial to those who genuinely want to accord a quietus to their matrimonial disputes. We would, however, like to clarify that reduction of burden of cases on the courts will, however, be merely an incidental benefit and not the reason for sending the parties for mediation. We recognize ‘mediation’ as an effective method of alternative dispute resolution in matrimonial matters and that is the reason why we want the parties to explore the possibility of settlement through mediation in matrimonial disputes.

36. We, therefore, issue directions, which the courts dealing with the matrimonial matters shall follow:

a) In terms of Section 9 of the Family Courts Act, the Family Courts shall make all efforts to settle the matrimonial disputes through mediation. Even if the Counsellors submit a failure report, the Family Courts shall, with the consent of the parties, refer the matter to the mediation centre. In such a case, however, the Family Courts shall set a reasonable time limit for mediation centres to complete the process of mediation because otherwise the resolution of the disputes by the Family Court may get delayed. In a given case, if there is good chance of settlement, the Family Court in its discretion, can always extend the time limit.

b) The criminal courts dealing with the complaint under Section 498-A of the IPC should, at any stage and particularly, before they take up the complaint for hearing, refer the parties to mediation centre if they feel that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigour, purport and efficacy of Section 498-A of the IPC is not diluted. Needless to say that the discretion to grant or not to grant bail is not in any way curtailed by this direction. It will be for the concerned court to work out the modalities taking into consideration the facts of each case.

c) All mediation centres shall set up pre-litigation desks/clinics; give them wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage.

37. The appeal is disposed of in the aforestated terms.

……………………………………………..J.

(AFTAB ALAM)

……………………………………………..J.

(RANJANA PRAKASH DESAI)

NEW DELHI,

Ex parte divorce decree by foreign court invalid.

Delhi High Court.

"From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties."





 IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.R.P.148/2011 % Date of Decision: April 22, 2013

 PRITAM ASHOK SADAPHULE ..... Petitioner Through: Mr.Rakesh Taneja, Advocate
                           versus
HIMA CHUGH .... Respondent Through: Mr.Prashant Mendiratta, Adv.

 CORAM: HON'BLE MS. JUSTICE VEENA BIRBAL VEENA BIRBAL, J. *

 1. By this revision petition challenge has been made to order dated 22nd September, 2011 passed by the ld.Addl. District Judge-1, New Delhi District, Patiala House Courts, New Delhi in HMA No.15/2011 whereby the application of the petitioner/husband under section 13 of the CPC has been dismissed. 2. Briefly the facts relevant for the disposal of the present petition are as under:-
The parties met each other in England in the year 2004 and developed liking for each other. On 5th March, 2005, both got married at New Delhi. After about one week of marriage, they went back to England on 12th March, 2005. With the passage of time, disputes and differences arose between them as a result of which they could not live together. In September, 2009, respondent/wife had lodged a complaint of domestic violence, cruelty and assault against the petitioner/husband in Ilford Police Station, England. It is alleged that respondent/wife also invoked the jurisdiction of UK Family Court (Brentford County Court) for Non-Molestation and Occupation order.
CRP 148/2011 Page 2 of 10
in September, 2009. Thereafter, she had come back to India in December, 2009. In March, 2010, respondent/wife lodged FIR against the petitioner/husband, his parents and family members being FIR no.46/2010 under Section 498-A/34 IPC, P.S. Tilak Nagar, Mumbai. Petitioner/husband has filed a petition for quashing of aforesaid FIR which is pending disposal before the Bombay High Court.

 3. In December, 2010, petitioner/husband had filed a divorce petition before the Ilford County Court in UK for dissolution of marriage by a decree of divorce on the ground that the respondent had misbehaved with him and that he could not reasonably be expected to live with her. It is alleged that respondent was served with the divorce petition on 19th November, 2010.

 4. On 21st December, 2010, respondent/wife had filed a suit being Civil Suit (OS) No.2610/2010 before this court praying for a grant of decree of permanent injunction against the petitioner for continuing with the divorce petition before the court in UK. During the pendency of aforesaid divorce petition, respondent had filed a complaint before learned MM, Dwarka, New Delhi under The Protection of Women from Domestic Violence Act, 2005. The same was dismissed on 24th December, 2010 by the concerned ld.MM, as not maintainable. Respondent filed an appeal against the said order which was dismissed vide order dated 28.3.2011.
5. The respondent/wife also filed a petition under section 13(1)(ia) of the Hindu Marriage Act i.e. HMA No.15/2011 in February, 2011 praying for dissolution of marriage with petitioner on the ground of cruelty which is pending disposal before learned Addl. District Judge, Delhi.

6. The ld. Ilford County Court in UK had passed a Decree Nisi on 9th May, 2011 stating therein that marriage between the parties has been broken
CRP 148/2011 Page 3 of 10
down irretrievably and ordered that the said marriage be dissolved unless sufficient cause be shown within six weeks as to why the same be not made “absolute”. A copy of the said decree was placed by the petitioner before the ld.Addl. District Judge, New Delhi on 10th June, 2011 hearing HMA 15/2011. Respondent filed a detailed representation before the Ld. Ilford County Court in UK on 15th June, 2011 opposing making the divorce decree absolute. However, the decree passed by the Ilford County Court was made „absolute‟ on 21st June, 2011. Thereafter, in July, 2011 an application under section 13 of CPC was filed by the petitioner for dropping the divorce proceedings against him on the ground that marriage between the parties has already been dissolved by a decree of divorce by Ilford County Court in U.K., as such divorce petition filed by respondent/wife has become infructuous. Reply was filed by the respondent to the aforesaid application contending therein that decree of divorce passed by the foreign court is not recognised in Indian Law. It was further stated that the ground on which the foreign court had dissolved the marriage i.e., irretrievable breakdown was no ground for dissolution of marriage under the Hindu Marriage Act, as such, the said decree cannot be recognised in India.

 7. After considering the contentions of the parties, the learned trial court relying on the judgment in Y Narashimha Rao & ors vs. Y.Venkata Lakshimi & another: (1991) 3 SCC 451, has dismissed the said application.
8. Aggrieved with the same, present petition is filed.

9. Learned counsel for the petitioner has contended that respondent-wife has not obtained any declaration from a competent court declaring the foreign decree of divorce as null and void, as such, same cannot be treated
CRP 148/2011 Page 4 of 10
as a nullity by the ld.trial court. In support of his contention, learned counsel has relied upon the judgment of this court in Harbans Lal Malik vs. Payal Malik 171 (2010) DLT 67. It is further contended that respondent was served with summons issued by the Ilford County Court on 19th November, 2010 and she also made a representation there. In these circumstances, it cannot be said that she has not subjected herself to the jurisdiction of the said court. It is further contended that participating or not participating before the foreign court by the respondent is immaterial. The exceptions are given in Section 13 of CPC as to when a foreign judgment is not conclusive and binding. It is contended that in the present case none of the exceptions as stated therein exist.

 10. On the other hand, learned counsel for the respondent has contended that present petition is liable to be dismissed inasmuch as the petitioner seeks to enforce a decree of divorce granted by a foreign court which is not recognised in India and it would be opposed to public policy if the said decree is afforded any recognition. It is contended that the sole ground of the petitioner hinges on averring that respondent should have obtained declaration from a competent court declaring the foreign decree as null and void. It is contended that petitioner is misleading the court inasmuch as petitioner himself made a voluntary statement before the ld.trial court that he would be filing an application under section 13 of the CPC and thereafter had moved the said application which was ultimately rejected and now the petitioner cannot turn around and contend that respondent should have approached the competent court seeking declaration of foreign divorce decree as null and void.

11. Learned counsel for the respondent has contended that judgment of
CRP 148/2011 Page 5 of 10
the Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) is clearly applicable to the facts of the present case. It is contended that foreign divorce decree was an ex parte decree wherein respondent could not contest. The said decree is not recognised in India, as such, petitioner is not entitled for any relief.

 12. The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under:-

“12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.
Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court
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should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression "competent court" in Section 41 of the Indian Evidence Act has also to be construed likewise.
Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.
The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of
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Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.
Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied.
The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognise a foreign
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judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.

 13. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private international Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainly in the most vital field of national life and conformity with pubic policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable
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section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife's domicile follows that of her husband and that it is the husband's domiciliary law which determines the jurisdiction and judges the merits of the case.” 13. It is admitted position that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies and both are governed by Hindu Marriage Act, 1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under the Hindu Marriage Act. The Supreme Court in Y.Narasimha Rao and Ors vs. Y.Venkata Lakshmi and Anr (supra) has already held that foreign decree of divorce granted on a ground which is not recognized in India.

14. The contention raised by the petitioner that there should be declaration from a competent court declaring the foreign decree null and void has no force as it is the petitioner who had moved an application under section 13 of CPC praying therein that the petitioner has already obtained a divorce decree from a foreign court thereby the marriage between the parties has been dissolved, as such, divorce petition pending before the ld.Addl. District Judge has become infructuous. Pursuant thereto reply was filed by respondent/office opposing the said application. While deciding the said application, the impugned order has been passed.

15. Further the divorce granted by the Ilford County Court in UK is an ex parte divorce decree. Respondent never submitted herself to the jurisdiction of the said court. Respondent lodged a representation dated 15.6.2011 before the Ilford County Court informing that she was in India when the
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divorce petition was filed. She also informed that she was in acute financial difficulty to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the Ilford County Court not to make the divorce decree “absolute”. Respondent also filed CS(OS)2610/2010 before this court praying for grant of a decree of permanent injunction against the petitioner from continuing with the divorce petition before the court in UK. In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court.

16. The reliance placed by learned counsel for the petitioner on the judgment of Harbans Lal Malik vs. Payal Malik (supra), is of no help to him. The facts of the said case are entirely different. The learned trial court has also considered the judgment of this court in Harmeeta Singh vs. Rajat Taneja reported in I(2003) DMC 443 and Mrs.Veena Kalia vs. Dr.Jatinder Nath Kalia and anr reported as 59(1995) Delhi Law times 635 in coming to the conclusion that decree of dissolution of marriage granted by the Ilford County Court, Essex, UK cannot be recognised as the facts of the case fall within the purview of the exceptions of Section 13 of CPC. In view of the above discussion, no illegality is seen in the impugned order which calls for interference of this court. Petition is dismissed.

VEENA BIRBAL, J APRIL 22, 2013 ssb