CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2446 of 1991.
From the Judgement and Order dated 11.10.1990 of the Bombay High Court in F.A. No. 649 of 1990.
Mrs. C.M. Chopra for the Appellant.
Respondent in person.
The Judgment of the Court was delivered by
KULDIP SINGH, J. His parents advertised for " homely non-medico" bride. Her parents responded. Marriage took place on January 24, 1988 at Noida near Delhi. They hardly lived as husband and wife at Pune for about seven months when on August 16, 1988 the husband filed a petition under Section 13 of the Hindu Marriage Act for dissolution of Marriage on the ground of cruelty. He alleged "she had a habit of smoking" and "it was found that she was in the habit of drinking and even once came drunk to the applicant’s house and abused everybody". He further alleged " it was found by the applicant that she was working as a model prior to marriage and he found few pictures of the respondent in bikini and semi-nude clothes in magazines". She vehemently denied the allegations and claimed that the she was a homely, vegetarian, non-smoking, teetotaller and faithful house-wife. The Family Court at Pune proceeded exparte and granted divorce-decree by the order dated November 30, 1989. Wife’s application for setting aside the ex-parte decree was dismissed by the Family Court on June 24, 1990. The High Court by its judgment dated October 10/11, 1990 unheld the findings of the Family Court with the modification that in place of decree for dissolution of marriage it granted a decree for judicial separation. This appeal by way of special leave is by the wife against the judgments of the courts below.
During the pendency of the divorce-proceedings before Family Court, Pune, the wife filed a petition, on May 1, 1989, before this Court seeking transfer of the case from the Family Court, Pune to Delhi. This Court granted ad interim stay of the proceedings before the Family Court, Pune. The stay remained operative till September 11, 1989 when this Court dismissed the transfer petition and vacated the stay. Thereafter the husband appeared before the Family Court on September 15, 1989 whereas the appellant-wife remained absent. Notices were sent by registered post to the wife on her address at Noida and also at her Delhi address given by her in the proceedings before this Court. The notice came back with the remarks "not found". The Family Court ordered substituted service and a notice was published in the "Times of India" New Delhi of dated October 24.1989 asking the wife to appear before the Family Court on November 16, 1989 or the proceedings would be taken ex-parte. On November 16, 1989 the Family Court ordered exparte proceedings. The issues were framed on November 21, 1989, the evidence of the husband was recorded on November 25, 1989 and the judgment was pronounced on November 30, 1989.
The appellant filed an application dated December 18, 1989 for setting aside the ex-parte divorce-decree wherein she stated that after she was forced to leave her matrimonial-home at Pune, she was residing with her parents at Noida. She further stated that in October/November, 1989 she had gone to reside with her brother at Delhi. According to her she applied to the Army Authorities claiming maintenance out of her husband’s salary. Respondent-husband is an Army officer. The Army Authorities sent a letter dated December 14, 1989 to her father wherein it was mentioned that his daughter’s application for maintenance allowance could not be entertained because the husband had already obtained a divorce-decree from the court. A copy of the Family Court Judgment granting divorce-decree to the husband was also annexed to the letter. The appellant claims that for the first time, on or about December 14, 1989, She came to know through her father that the respondent had already been granted an ex-parte divorcedecree by the Family Court. The appellant in her application inter alia stated as under:-
"The applicant submits that the applicant did not
receive any notice/letter/summons or communication
from this Hon’ble Court’s office. Even there was
no intimation given by postal
authorities and the applicant honestly states that
till the receipt of the letter from the Army H.Q.
New Delhi, she was not aware of the date of
proceeding. The applicant submits, the applicant
was under bona fide belief that she will receive a
notice from this Hon’ble Court. As such and being
far from Pune, either in Noida ( U.P.) or at New
Delhi, it was not possible for her to approach this
Hon’ble Court for any enquiry since she was also
not permitted to appear through the lawyer.......At
any rate and in any event, the applicant also did
not come across the public notice published in
Times of India, New Delhi on 24th October 1989 as
stated in the decree. The applicant submits, the
applicant had every intention to resist the
marriage petition filed by the opponent since the
same was absolutely false, frivolous and out and
out false, and has been resisted by the applicant
by filing written statement, preliminary objection
including to approach the Supreme Court of India.
The intention of the applicant was clear. The
applicant submits, the applicant was also advised
by her Advocate that she will receive a fresh
notice in due course of time after the stay was
vacated by the Hon’ble Supreme Court of India from
this Hon’ble Court. The applicant states, she
resides at a far long distance from Pune. She was
also refused any assistance of lawyer. The
applicant has no relation or any representative who
can look after her in the present proceeding in
Pune. It was in these circumstances, the applicant
was prevented by sufficient cause from appearing in
the marriage petition proceeding No.561/89 and as
such the said decree is required to be set aside
..... The applicant states, the applicant is unable
to maintain herself, she has no source of income
..... The applicant submits because of the passing
of ex-parte decree, she has been refused
maintenance allowance. The applicant also prays
for granting of maintenance allowance pending final
disposal of this application." The Family Court dismissed the application for setting aside ex-parte divorce-decree on the following reasoning:-
"But where the party itself knows that stay
obtained by it has been vacated, there appears no
warrant for the proposition that again a notice is
required to be given to the said party. I do
not think that such advice was really given to the
applicant. The applicant has not produced any
evidence to the effect that she received such
advice from a lawyer. It is her own statement. It
is a self-serving statement and can hardly be
believed. I think that if the applicant was
really keen and desirous to contest matrimonial
petition, she would have at once made enquiries to
find out as to when the next date for hearing in
this court was fixed after her application for
transfer of the case was dismissed by the Supreme
Court and the stay obtained by her was vacated.
The order of vacating the stay was passed on 11th
September 1989 by the Hon’ble Supreme Court and the
applicant knew fully well about it. The opponent
who had also appeared in the Supreme Court in
connection of that matter did appear in this Court
on 15.9.1989. The record of P.A. No. 561/89 shows
that opponent applied for issuing of notice to the
present applicant. The notice was issued by
registered post on two separate addresses. One of
the address was the one shown by applicant herself
in Supreme Court petition and the other address was
the one which was admitted to be her address in the
matrimonial petition (which was address of her
father at Delhi). Both these notices were sent by
registered post in due course. The court waited
till return of this notice. On both these envelops
postal authorities have endorsed that the present
applicant was not found on these addresses. The
opponent had, therefore, made application that the
applicant was avoiding to take notice and hence
substituted service by publishing in Times of India
be made. Accordingly, a notice was published as
per order of the Court on opponent’s
application......Thus the contention of the
respondent that she had no notice of the further
proceeding in marriage petition does not appear
convincing. As stated already in the first
instance, there was no necessity for her to wait
for receipt of the notice in the circumstances of
the present case. The notices sent to her were
obviously evaded, otherwise there was no reason why
the applicant was found on either of the addresses
which she admits to be the correct addresses. Even
if she was not present, there was no reason why
other major members of the family did not accept
these notices. And lastly the publication of the
notice
in one of the most widely circulated newspaper at
Delhi was sufficient notice to the applicant."
The High Court upheld the reasoning and the conclusions reached by the Family Court and dismissed the appeals filed by the wife.
The respondent appeared before us in person and himself argued his case. The learned counsel for the appellant raised the following points for our consideration:-
(a) That the Family Court and the High Court grossly erred in dismissing the application filed by the appellant for setting aside the ex-parte proceedings;
(b) That the divorce-petition was filed hardly seven months after the marriage. Section 14 of the Hindu Marriage Act provides "it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage". The divorce petition should have been dismissed as not competent in terms of Section 14 of the Hindu Marriage Act;
(c) that even on merits the divorce-decree is based on no evidence. The allegations in the divorce-petition are wholly vague. In any case the evidence of Major Ved Prakash being wholly interested and contrary to the record the courts below fell into grave error in accepting serious allegations against the appellant on the basis of his evidence;
(d) that the High Court acted illegally in substituting the decree of divorce to that of a decree for judicial separation. The High Court should have dismissed the divorce-petition.
We may take-up the Fist Point.
The appellant filed written statement before the Family Court, Pune vehemently denying the allegations made against her by the respondent. She also raised preliminary objections regarding the maintainability of the divorce petition. She filed a transfer petition before this Court which was dismissed in September, 1989. She filed another transfer petition which was dismissed by this Court on April 12,1990 with the following observations:-
"It is open to the petitioner to move the High
Court under Section 24, Code of Civil Procedure for
consideration of her prayer that the case be
transferred to another Judge. On the merits of
this prayer, we decline to make any observation.
It would appear that the case is now listed before
the Family Judge at Pune on 13.4.90. It will be
appropriate that having regard to the apprehension
expressed by the petitioner the Court should not
proceed with the matter until her prayer for
transfer is considered by the High Court. We
accordingly direct the Family Court, Pune to stay
further proceeding in the case, a period of 60 days
from today to enable the petitioner to approach the
High Court."
It is no doubt correct that the appellant did not approach the High Court for the transfer of the case but the fact remains that she was been seriously contesting the divorce proceedings and it would not be fair to assume that she deliberately choose to abstain from the Family Court and was intentionally avoiding the summons.
The Family Court and the High Court have held that after the dismissal of the transfer petition and vacation of stay by this Court the appellant-wife should have, on her own, joined the proceeding before the Family Court. According to the courts below no notice for appearance was required to be sent to the parties after the stay was vacated.
It is not necessary for us to go into the question as to whether a fresh notice to the parties is necessary where the superior Court vacates the stay order and as a consequence the proceeding recommence before the court below. We are of the view that in the fact and circumstances of this case the interest of justice required the issue of such a notice. The admitted facts in this case are as under:-
(i) While dismissing the transfer petition and
vacating the stay order this Court did not fix any
date for the appearance of the parties before the
Family Court, Pune
(ii) The Family Court had permitted the assistance
of a lawyer to the appellant-wife in the following
terms: "As applicant is from Delhi and it would
cause hardship, permission is granted
for engaging an Advocate for pleading her case
only for the purpose of presenting applications or
serving notices and noting the orders of the
Court."
(iii) The appellant did not engage a lawyer to
represent her before the Family Court, Pune.
(iv) The appellant-wife was residing with her
parents at Noida (Delhi).
Even the distance between Noida and Pune was a big hassle for the appellant especially when she had no counsel to look after the proceedings before the Family Court, Pune. We are of the view that in the facts and circumstances of this case she was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties. The applicability of the Rules of natural justice depends upon the facts and circumstances of each case. We are of the view that in the facts and circumstances of this case she was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties. The applicability of the Rules of natural justice depends upon the facts and circumstances of each case. We are of the view that in this case fair-play and the interest of justice required the issuance of a fresh notice to the parties after the stay order was vacated by this Court. We do not, therefore, agree with the findings of the Courts below to the contrary.
In any case-realising the requirements of natural justice-the Family Court, sent two registered notices to the appellant at her Noida address and also at the address given by her in the proceedings before this Court. Unfortunately, both the notices came back with the endorsements that the appellant could not be found on the given addresses. There is no material on the record to reach a conclusion that the appellant refused to receive the notices. There is also nothing on the record to show as to whether the postal authorities made any efforts to deliver the registered letters to any of the appellant’s relations at the given addresses. The courts below are wholly unjustified in holding that the appellant refused to receive the notices and further that the said notices could have been received by any of her relations on the given addresses.
After the notices sent by registered post were received back, the Family Court did not make any attempt to serve the appellant through the process of the Court. The appellant was no stranger to the respondent. She was his wife. It could not have been difficult for him to find out the address where she was staying. Under the circumstances, resort to the substitute service by way of publication in the newspaper was not justified.
We are, therefore, of the view that there was sufficient cause for the non-appearance of the appellant in the matrimonial petition before the Family Court.
The view we have taken on the first point, it is not necessary to deal, with the other points raised by the learned counsel for the appellant.
We, therefore, set aside the order of the Family Court dated June 24, 1990 and allow the appellant’s application dated December 18, 1989 and set aside the ex-parte decree passed against the appellant in Marriage petition No. A561/89. As a consequence the judgment of the Family Court, Pune dated November 30, 1989 and the judgment of the High Court in First Appeal No. 649/90 dated October 10/11, 1990 are also set aside.
The appellant had asked for transfer of her case from the Principal Judge, Family Court, Pune to some other court and this Court gave liberty to the appellant to move the High Court for the said purpose. We are satisfied that the reason given by the appellant for such transfer and the apprehensions entertained by her are wholly unjustified. We ar, however, of the view that the Principal Judge, Family Court Pune, has taken the grievances made by the appellant before this Court rather seriously and has commented adversely about the same. With a view to do complete justice between the parties we direct that this case be transferred from the file of Principal Judge, Family Court, Pune to the Principal Judge, Family Court, Bombay. The parties are directed to appear before the Principal Judge, Family Court, Bombay on June 22, 1992.
Before concluding we wish to place on record that we tried to persuade the parties to live together and in the alternative to settle their dispute amicably but with no result.
We allow the appeal in the above terms with no order as to costs. N.V.K. Appeal allowed.