Mrs. Payal
Ashok Kumar Jindal Vs. Capt. Ashok Kumar Jindal [1992] INSC 145 (6 May 1992)
Kuldip
Singh (J) Kuldip Singh (J) Kania, M.H. (Cj)
CITATION:
1992 SCR (3) 81 1992 SCC (3) 116 JT 1992 (4) 28 1992 SCALE (1)1079
ACT:
Family
Court's Act, 1984 : Section 10.
Hindu
Marriage Act, 1956 : Section 13.
Code
of Civil Procedure, 1908 Or 5. Rule 9, 10 and 9 rule 6.
Constitution
of India, 1950 : Articles 136 and 142.
Divorce
proceedings against wife Family Court Pune- Petition for transfer in Supreme
Court by wife for transfer of proceedings from Family Court Pune to Family
Court Delhi- Petition dismissed-Notices by Registered Post and substituted
service by Newspaper publication made for appearance of wife-Non appearance of
wife-Set ex parte- Divorce decree granted to husband-Application by wife for
setting aside ex parte decree-Dismissed-High Court confirming the dismissal
order-Appeal by wife to Supreme Court-Allowed-Held sufficient cause for non
appearance- Exparte decree set aside-Case transferred to Family Court, Bombay.
HEAD NOTE:
The
parties to the appeal were married on January 24, 1988 at Noida near Delhi. They hardly lived as husband and
wife at Pune for about seven months when on August 16, 1988 the husband-Respondent filed a petition under Section 13 of
the Hindu Marriage Act, 1956 for dissolution of the marriage on the ground of
cruelty. He alleged that the wife had a habit of smoking and drinking and even
once came drunk to the house and abused everybody. The wife vehemently denied
the allegations and claimed that she was a homely, vegetarian, non-smoking,
teetotaler and faithful house-wife.
During
the pendency of the aforesaid divorce-proceeding before the Family Court,Pune,
the wife filed a petition, on May 1, 1989,
before this Court seeking transfer of the case from the Family Court, Pune to Delhi. This Court granted ad interim stay
of the proceedings which remained operative till September 11, 1989 when the Transfer Petition was dismissed 82 and the stay
become vacated.
Thereafter,
the husband appeared before the Family Court on September 15, 1989 whereas the wife remained absent. Notice were sent by
registered post to the wife on her address at Noida and also at her Delhi address given in the proceedings
before this Court. The notices having come back with the remarks "not
found", the Family Court ordered sub-stituted service, and a notice was
published in a Delhi daily newspaper asking the wife to
appear before the Family Court on November 16, 1989. The wife not having appeared on
the said date the Family Court ordered ex-parte proceedings.
The
issues were framed on November
21, 1989, evidence of
the husband was recorded on November 25,1989
and the judgment was pronounced on November 30, 1989, granting the husband a divorce
decree.
The
wife filed an application dated December 18, 1989 for setting aside the ex-parte divorce-decree. She
contended that she was forced to leave the matrimonial home at Pune and was
residing with her parents at Noida, and that in October/November, 1989 she had
gone to reside with her brother at Delhi, that she applied to the Army
Authorities claiming maintenance out of her husband's salary, and that the Army
Authorities sent a letter dated December 14, 1989 to her father informing that
the application for maintenance could not be entertained as the husband had
already obtained a divorce decree from the Court. She further contended that
for the first time on or about December 14, 1989
she came to know from her father that her husband had been granted an ex-parte
divorce decree by the Family Court.
The
Family Court dismissed the application for setting aside ex-parte
divorce-decree, and the High Court upheld the reasoning and conclusions reached
by the Family Court and dismissed the appeals filed by the wife.
In the
appeal to this Court by the wife it was contended that: (1) The Family Court
and the High Court grossly erred in dismissing the application filed by the
appellant for setting aside the ex-parte proceedings; (2) the divorce petition
should have been dismissed as not competent in terms of Section 14 of the Hindu
Marriage Act as the Statutory period of one year had not lapsed since the date
of marriage, (3) even on merits the divorce-decree is based on no evidence, the
allegations in the divorce- petition 83 being wholly vague, and (4) the High
Court acted illegally in substituting the decree of divorce to that of a decree
for judicial separation.
Allowing
the Appeal, this court,
HELD:
1. The appellant filed written statement before the Family Court,Pune denying
the allegations made against her by the respondent. She also raised preliminary
objections regarding the maintainability of the divorce petition. Though her
transfer petitions before this Court were dismissed in September, 1989 and on
April 12, 1990 and that she did not approach the High Court for transfer of her
case, the fact remains that she has been seriously contesting the divorce
proceedings and it would not be fair to assume that she deliberately chose to
abstain from the Family Court, and was intentionally avoiding the summons.
2. In
the facts and circumstances of this case, the appellant was justified in her
assumption that the proceedings before the Family Court would be resumed after
fresh notice to the parties. The applicability of the Rules of natural justice
depends upon the facts and circumstances of each case. Fair-play and the
interest of justice in this case required the issuance of a fresh notice to the
parties after the stay order was vacated by this Court.
3. The
Family Court, sent two Registered notice to the appellant at her Noida address
and also at the address given by her in the proceedings before this Court.
Unfortunately, both the notices came back with the endorsements that the
appellant could not be found on the given addresses. On the record there is no
material to reach a conclusion that the appellant refused to receive the
notices, or to show whether the postal authorities made any efforts to deliver
the registered letters to any of the appellants' relations at the given addresses.
The Courts below are therefore wholly unjustified in holding that the appellant
refused to receive the notices and further that the said notices could have
been received by any of her relations on the given addresses.
4.
After the notices sent by registered post were received back, the Family Court
did not make any attempt to serve the appellant through the process of the
Court. The appellant was not stranger to the respondent. She was his wife. It
could not have been difficult for him to find out the address where she was staying
. Under the circumstances resort to the 84 substitute service by way of
publication in the newspaper was not justified. There was, therefore,sufficient
cause for the non-appearance of the appellant in the matrimonial petition
before the Family Court.
5.
With a view to do complete justice between the parties it is directed that this
case be transferred from the file of the Principal Judge, Family Court, Pune to
the Principal Judge, Family Court, Bombay, and the parties are directed to appear before the Principal Judge,
Family Court Bombay.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2446 of 1991.
From
the Judgement and Order dated 11.10.1990 of the Bombay High Court in F.A. No.
649 of 1990.
Mrs.
C.M. Chopra for the Appellant.
Respondent
in person.
The
Judgment of the Court was delivered by KULDIP SINGH, J. His parents advertised
for " homely non-medico" bride. Her parents responded. Marriage took
place on January 24,
1988 at Noida near Delhi. They hardly lived as husband and
wife at Pune for about seven months when on August 16, 1988 the husband filed a petition under Section 13 of the Hindu
Marriage Act for dissolution of Marriage on the ground of cruelty. He alleged
"she had a habit of smoking" and "it was found that she was in
the habit of drinking and even once came drunk to the applicant's house and
abused everybody". He further alleged " it was found by the applicant
that she was working as a model prior to marriage and he found few pictures of
the respondent in bikini and semi-nude clothes in magazines".
She
vehemently denied the allegations and claimed that the she was a homely,
vegetarian, non-smoking, teetotaller and faithful house-wife. The Family Court
at Pune proceeded ex- parte and granted divorce-decree by the order dated November 30, 1989. Wife's application for setting
aside the ex-parte decree was dismissed by the Family Court on June 24, 1990.
The
High Court by its judgment dated October 10/11, 1990 unheld the findings of the
Family Court with the modification that in place of decree for dissolution of
marriage it granted a decree for judicial separation. This appeal by way of
special leave is by the wife against the judgments of the courts below.
85
During the pendency of the divorce-proceedings before Family Court, Pune, the
wife filed a petition, on May 1, 1989,
before this Court seeking transfer of the case from the Family Court, Pune to Delhi. This Court granted ad interim stay
of the proceedings before the Family Court, Pune. The stay remained operative
till September 11, 1989 when this Court dismissed the
transfer petition and vacated the stay. Thereafter the husband appeared before
the Family Court on September
15, 1989 whereas the
appellant-wife remained absent. Notices were sent by registered post to the
wife on her address at Noida and also at her Delhi address given by her in the proceedings before this Court.
The notice came back with the remarks "not found". The Family Court
ordered substituted service and a notice was published in the "Times of
India" New Delhi of dated October 24.1989 asking the
wife to appear before the Family Court on November 16, 1989 or the proceedings would be taken
ex-parte. On November
16, 1989 the Family
Court ordered ex- parte proceedings. The issues were framed on November 21, 1989, the evidence of the husband was
recorded on November
25, 1989 and the
judgment was pronounced on November 30, 1989.
The
appellant filed an application dated December 18, 1989 for setting aside the ex-parte
divorce-decree wherein she stated that after she was forced to leave her
matrimonial-home at Pune, she was residing with her parents at Noida. She
further stated that in October/November, 1989 she had gone to reside with her
brother at Delhi. According to her she applied to
the Army Authorities claiming maintenance out of her husband's salary.
Respondent-husband is an Army officer. The Army Authorities sent a letter dated
December 14, 1989 to her father wherein it was
mentioned that his daughter's application for maintenance allowance could not
be entertained because the husband had already obtained a divorce-decree from
the court. A copy of the Family Court Judgment granting divorce-decree to the
husband was also annexed to the letter. The appellant claims that for the first
time, on or about December
14, 1989, She came to
know through her father that the respondent had already been granted an ex-parte
divorce- decree by the Family Court. The appellant in her application inter alia
stated as under:- "The applicant submits that the applicant did not
receive any notice/letter/summons or communication from this Hon'ble Court's office. Even there was no
intimation given by postal 86 authorities and the applicant honestly states
that till the receipt of the letter from the Army H.Q. New Delhi, she was not aware of the date of
proceeding. The applicant submits, the applicant was under bona fide belief
that she will receive a notice from this Hon'ble Court. As such and being far from Pune, either in Noida ( U.P.)
or at New Delhi, it was not possible for her to approach this Hon'ble Court for
any enquiry since she was also not permitted to appear through the
lawyer.......At any rate and in any event, the applicant also did not come
across the public notice published in Times of India, New Delhi on 24th October
1989 as stated in the decree. The applicant submits, the applicant had every
intention to resist the marriage petition filed by the opponent since the same
was absolutely false, frivolous and out and out false, and has been resisted by
the applicant by filing written statement, preliminary objection including to
approach the Supreme Court of India.
The
intention of the applicant was clear. The applicant submits, the applicant was
also advised by her Advocate that she will receive a fresh notice in due course
of time after the stay was vacated by the Hon'ble Supreme Court of India from
this Hon'ble Court. The applicant states, she resides
at a far long distance from Pune. She was also refused any assistance of
lawyer. The applicant has no relation or any representative who can look after
her in the present proceeding in Pune. It was in these circumstances, the
applicant was prevented by sufficient cause from appearing in the marriage
petition proceeding No.561/89 and as such the said decree is required to be set
aside ..... The applicant states, the applicant is unable to maintain herself,
she has no source of income ..... The applicant submits because of the passing
of ex-parte decree, she has been refused maintenance allowance. The applicant also
prays for granting of maintenance allowance pending final disposal of this
application." The Family Court dismissed the application for setting aside
ex-parte divorce-decree on the following reasoning:- "But where the party
itself knows that stay obtained by it has been vacated, there appears no
warrant for the proposition that again a notice is required to be given to the
said party. I do 87 not think that such advice was really given to the
applicant. The applicant has not produced any evidence to the effect that she
received such advice from a lawyer. It is her own statement. It is a
self-serving statement and can hardly be believed. I think that if the
applicant was really keen and desirous to contest matrimonial petition, she
would have at once made enquiries to find out as to when the next date for
hearing in this court was fixed after her application for transfer of the case
was dismissed by the Supreme Court and the stay obtained by her was vacated.
The
order of vacating the stay was passed on 11th September 1989 by the Hon'ble Supreme Court and
the applicant knew fully well about it. The opponent who had also appeared in
the Supreme Court in connection of that matter did appear in this Court on
15.9.1989. The record of P.A. No. 561/89 shows that opponent applied for
issuing of notice to the present applicant. The notice was issued by registered
post on two separate addresses. One of the address was the one shown by
applicant herself in Supreme Court petition and the other address was the one
which was admitted to be her address in the matrimonial petition (which was
address of her father at Delhi). Both these notices were sent by
registered post in due course. The court waited till return of this notice. On
both these envelops postal authorities have endorsed that the present applicant
was not found on these addresses. The opponent had, therefore, made application
that the applicant was avoiding to take notice and hence substituted service by
publishing in Times of India be made. Accordingly, a notice was published as
per order of the Court on opponent's application......Thus the contention of
the respondent that she had no notice of the further proceeding in marriage
petition does not appear convincing. As stated already in the first instance,
there was no necessity for her to wait for receipt of the notice in the
circumstances of the present case. The notices sent to her were obviously evaded,
otherwise there was no reason why the applicant was found on either of the
addresses which she admits to be the correct addresses. Even if she was not
present, there was no reason why other major members of the family did not
accept these notices. And lastly the publication of the notice 88 in one of the
most widely circulated newspaper at Delhi was sufficient notice to the applicant." The High Court upheld the
reasoning and the conclusions reached by the Family Court and dismissed the
appeals filed by the wife.
The
respondent appeared before us in person and himself argued his case. The
learned counsel for the appellant raised the following points for our
consideration:- (a) That the Family Court and the High Court grossly erred in
dismissing the application filed by the appellant for setting aside the ex-parte
proceedings;
(b)
That the divorce-petition was filed hardly seven months after the marriage.
Section 14 of the Hindu Marriage Act provides "it shall not be competent
for any court to entertain any petition for dissolution of a marriage by a
decree of divorce, unless at the date of the presentation of the petition one
year has elapsed since the date of the marriage". The divorce petition
should have been dismissed as not competent in terms of Section 14 of the Hindu
Marriage Act;
(c) that
even on merits the divorce-decree is based on no evidence. The allegations in
the divorce-petition are wholly vague. In any case the evidence of Major Ved Prakash
being wholly interested and contrary to the record the courts below fell into
grave error in accepting serious allegations against the appellant on the basis
of his evidence;
(d) that
the High Court acted illegally in substituting the decree of divorce to that of
a decree for judicial separation. The High Court should have dismissed the
divorce-petition.
We may
take-up the Fist Point.
The
appellant filed written statement before the Family Court, Pune vehemently
denying the allegations made against her by the respondent. She also raised
preliminary objections regarding the maintainability of the divorce petition.
She filed a transfer petition before this Court which was dismissed in
September, 1989. She filed another transfer petition which was dismissed by
this Court on April 12,1990 with the following observations:- 89 "It is
open to the petitioner to move the High Court under Section 24, Code of Civil
Procedure for consideration of her prayer that the case be transferred to
another Judge. On the merits of this prayer, we decline to make any
observation.
It
would appear that the case is now listed before the Family Judge at Pune on
13.4.90. It will be appropriate that having regard to the apprehension
expressed by the petitioner the Court should not proceed with the matter until
her prayer for transfer is considered by the High Court. We accordingly direct
the Family Court, Pune to stay further proceeding in the case, a period of 60
days from today to enable the petitioner to approach the High Court." It
is no doubt correct that the appellant did not approach the High Court for the
transfer of the case but the fact remains that she was been seriously contesting
the divorce proceedings and it would not be fair to assume that she
deliberately choose to abstain from the Family Court and was intentionally
avoiding the summons.
The
Family Court and the High Court have held that after the dismissal of the
transfer petition and vacation of stay by this Court the appellant-wife should
have, on her own, joined the proceeding before the Family Court.
According
to the courts below no notice for appearance was required to be sent to the
parties after the stay was vacated.
It is
not necessary for us to go into the question as to whether a fresh notice to
the parties is necessary where the superior Court vacates the stay order and as
a consequence the proceeding recommence before the court below. We are of the
view that in the fact and circumstances of this case the interest of justice
required the issue of such a notice. The admitted facts in this case are as
under:- (i) While dismissing the transfer petition and vacating the stay order
this Court did not fix any date for the appearance of the parties before the
Family Court, Pune (ii) The Family Court had permitted the assistance of a
lawyer to the appellant-wife in the following terms: "As applicant is from
Delhi and it would cause hardship, permission is granted 90 for engaging an
Advocate for pleading her case only for the purpose of presenting applications
or serving notices and noting the orders of the Court." (iii) The
appellant did not engage a lawyer to represent her before the Family Court, Pune.
(iv)
The appellant-wife was residing with her parents at Noida (Delhi).
Even
the distance between Noida and Pune was a big hassle for the appellant
especially when she had no counsel to look after the proceedings before the
Family Court, Pune.
We are
of the view that in the facts and circumstances of this case she was justified
in her assumption that the proceedings before the Family Court would be resumed
after fresh notice to the parties. The applicability of the Rules of natural
justice depends upon the facts and circumstances of each case. We are of the
view that in the facts and circumstances of this case she was justified in her
assumption that the proceedings before the Family Court would be resumed after
fresh notice to the parties. The applicability of the Rules of natural justice
depends upon the facts and circumstances of each case. We are of the view that
in this case fair-play and the interest of justice required the issuance of a
fresh notice to the parties after the stay order was vacated by this Court. We
do not, therefore, agree with the findings of the Courts below to the contrary.
In any
case-realising the requirements of natural justice-the Family Court, sent two
registered notices to the appellant at her Noida address and also at the
address given by her in the proceedings before this Court. Unfortunately, both
the notices came back with the endorsements that the appellant could not be
found on the given addresses. There is no material on the record to reach a
conclusion that the appellant refused to receive the notices. There is also
nothing on the record to show as to whether the postal authorities made any
efforts to deliver the registered letters to any of the appellant's relations
at the given addresses. The courts below are wholly unjustified in holding that
the appellant refused to receive the notices and further that the said notices
could have been received by any of her relations on the given addresses.
After
the notices sent by registered post were received back, the Family Court did
not make any attempt to serve the appellant through the process of the Court.
The appellant was no stranger to the respondent. She was his wife. It could not
have been difficult for him to find out the address where she was staying.
Under the circumstances, resort to the substitute service by way of publication
in the newspaper was not justified.
91 We
are, therefore, of the view that there was sufficient cause for the
non-appearance of the appellant in the matrimonial petition before the Family
Court.
The
view we have taken on the first point, it is not necessary to deal, with the
other points raised by the learned counsel for the appellant.
We,
therefore, set aside the order of the Family Court dated June 24, 1990 and
allow the appellant's application dated December 18, 1989 and set aside the ex-parte
decree passed against the appellant in Marriage petition No. A- 561/89. As a
consequence the judgment of the Family Court, Pune dated November 30, 1989 and the judgment of the High Court
in First Appeal No. 649/90 dated October 10/11, 1990 are also set aside.
The
appellant had asked for transfer of her case from the Principal Judge, Family
Court, Pune to some other court and this Court gave liberty to the appellant to
move the High Court for the said purpose. We are satisfied that the reason
given by the appellant for such transfer and the apprehensions entertained by
her are wholly unjustified. We ar, however, of the view that the Principal
Judge, Family Court Pune, has taken the grievances made by the appellant before
this Court rather seriously and has commented adversely about the same. With a
view to do complete justice between the parties we direct that this case be
transferred from the file of Principal Judge, Family Court, Pune to the
Principal Judge, Family Court, Bombay. The
parties are directed to appear before the Principal Judge, Family Court, Bombay on June 22, 1992.
Before
concluding we wish to place on record that we tried to persuade the parties to
live together and in the alternative to settle their dispute amicably but with
no result.
We
allow the appeal in the above terms with no order as to costs.
N.V.K.
Appeal allowed.
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