Allahabad High Court
Smt. Saroj Singh Chauhan vs Arvind Kumar Chauhan on 1 October, 2019
Equivalent citations: AIR 2020 ALLAHABAD 26, AIRONLINE 2019 ALL 1654, 2020 (1) ALJ 321, (2019) 10 ADJ 201 (ALL), (2019) 3 DMC 847, (2020) 138 ALL LR 651, (2020) 1 ADJ 869 (ALL), (2020) 1 ALL WC 945, (2020) 1 HINDULR 442
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on: 02.08.2019 Delivered on: 01.10.2019 Court No. - 34 Case :- FIRST APPEAL No. - 737 of 2017 Appellant :- Smt. Saroj Singh Chauhan Respondent :- Arvind Kumar Chauhan Counsel for Appellant :- Triloki Nath,T.N. Tiwari Connected with Case :- FIRST APPEAL No. - 672 of 2018 Appellant :- Smt. Saroj Singh Chauhan Respondent :- Arvind Kumar Chauhan Counsel for Appellant :- Triloki Nath Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
(Delivered by Hon'ble Rajeev Misra,J)
1. These are two Defendants' First Appeals filed under Section 19 of Family Courts Act 1984 (hereinafter referred to as Act, 1984).
2. First Appeal No. 737 of 2017( Smt. Saroj Singh Chauhan Vs. Arvind Kumar Chauhan) has been filed challenging judgement dated 25.07.2017 and decree dated 23.08.2017 passed by Principal Judge, Family Court, Varanasi in Misc. Case No. 77 of 2008 (Saroj Vs. Arvind) in Marriage Petition No.565 of 2007 (Arvind Kumar Chauhan Vs. Saroj Singh Chauhan) whereby and where-under application dated 03.10.2008 (Paper No. 4Ga) filed by Defendant-Appellant (hereinafter referred to as 'Appellant') under Order IX Rule13 C.P.C. for recall of exparte judgement dated 08.05.2008 and decree dated 04.08.2008, respectively has been rejected.
3. First Appeal No. 672 of 2018 (Smt. Saroj Singh Chauhan Vs. Arvind Kumar Chauhan) has been filed challenging exparte judgement dated 08.05.2008 as well as decree dated 04.09.2008 passed by Principal Judge, Family Court, Varanasi in Marriage Petition No.565 of 2007 (Arvind Kumar Chauhan Vs. Saroj Singh Chauhan) whereby Court below has allowed Marriage Petition filed by plaintiff-respondent (hereinafter referred to as 'Plaintiff') and consequently, annulled marriage of parties.
4. We have heard Mr. T. N. Tiwari, Advocate, learned counsel for Appellant. No one has appeared on behalf of respondent.
5. According to plaint allegations marriage of Appellant was solemnized with Plaintiff on 03.05.2004 in accordance with Hindu Rites and Customs. After marriage, Appellant came to her matrimonial home on 04.05.2004. After staying about three days at her marital home, Appellant went to her parental home and thereafter returned to her marital home after one month. According to Plaintiff, Appellant duly performed her spousal obligations. It is the case of Plaintiff that at the time of marriage, Appellant had just passed her intermediate examination i.e. Class 12th. However, Appellant wanted to pursue her studies further. Appreciating her desire for further studies, Plaintiff with permission of his parents got Appellant admitted in B.A. First Year Course at Kasi Vidyapith, Varanasi. Consequently, Appellant started receiving her education in the aforesaid Course by residing at her parental home as well as with her classmates. It is alleged by Plaintiff that after taking admission in B.A. First Year Course, Appellant visited her marital home only for two months but thereafter, she mostly stayed at her parental home, despite repeated requests made by Plaintiff requesting Appellant not to stay at her parental home for such long periods. Appellant on the excuse of her studies did not pay any heed to the request of Plaintiff and his parents. Appellant as such used to visit her marital home at her will. Appellant came in family way. In the last days of her family way she insisted for staying at her parental home and accordingly went to her parental home. Ultimately, she gave birth to a girl child on 29.07.2005 at her parental home. Plaintiff, his mother and other relatives allege to have gone to parental home of Appellant and contributed by every means for well being of Appellant and newly born child. According to Plaintiff, he alongwith his mother visited parental house of Appellant and brought back Appellant to her marital home on 05.11.2005. However, just after two days Appellant on the pretext of her studies forcibly went to her parental home. Appellant started residing at her parental home. On the request made by Plaintiff and his mother requesting Appellant to return to her marital home, she was not agreeable. To the contrary she used to indulge in creating a 'Facade' on the said issue. Appellant as such started residing at her parental home and used to come to her marital home only to collect money to meet her expenses. Many attempts are alleged to have been made by Plaintiff to pursue Appellant to live in her marital home but she never agreed. Ultimately, after great efforts Appellant came to her marital home but again on the pretext of her studies, she went back to her parental home. Appellant is alleged to have stayed for a period of one or two days at her marital home and while leaving her marital home she took away all jewellary and clothes given by her in-laws at the time of marriage. After completing B.A. Second Year Course, Appellant demanded money for her educational and other expenses so that she could fill up form for B.A. Third Year Course. However, this request of Appellant was refused by Plaintiff and his family members on the ground that even if Appellant is desirous of pursuing her studies, she should stay at her marital home and pursue her studies from there only. However, according to Plaintiff, Appellant was not agreeable to this suggestion and ultimately, returned to her parental home.
6. One day in August, 2006, when mother of Plaintiff was all alone at home, as other family members had gone out, Appellant came to her marital home alongwith her brother Manoj Chauhan and her father. She had a scuffle with her mother-in-law and took away her clothes and other goods, which were lying at her marital home. Plaintiff, his father and his elder brother -Akhilesh came to know of aforesaid incident in evening. As such, they all went to parental home of Appellant. They had a dialogue with family members of Appellant and requested for sending Appellant to her marital home alongwith all her jewellery and clothes. On this, family members of Appellant revolted and abused father of Plaintiff. They did not agree to the request made by Plaintiff and his family members for sending Appellant to her marital home. After some time Plaintiff alone went to meet Appellant at her parental home for requesting her to return at her marital home. However, Appellant plainly refused to return to her marital home. According to Plaintiff, she alleged that in case Plaintiff wants to maintain relations with her, he should separate himself from his family and start residing with Appellant at her parental home. Thus, in October, 2006, father and brother of Appellant went to the house of Plaintiff to discuss about separation/divorce of Appellant from Plaintiff. They requested for holding a Panchayat in that regard. On this issue, exchange of hot words between Plaintiff and father/brother of Appellant is alleged to have taken place. On this, father of Appellant and his brother, who are notorious and have formed a gang, threatened mother of Plaintiff and after extending threat and exchanging hot words, returned. After aforesaid incident, Plaintiff and relatives of Appellant wanted to amicably settle dispute. Unfortunately on 20.12.2006, father of Appellant and her brother connived with each other to get mother of Plaintiff killed. Unfortunately, mother of Plaintiff died at her matrimonial home. An F.I.R. in respect of aforesaid incident was lodged against unknown persons. Police upon investigation implicated father and brother of Appellant as accused. They were released on bail. Appellant failed to discharge her spousal obligations after 10.05.2005, nor established conjugal relations. After 10.02.2005, conduct of Appellant towards Plaintiff is full of cruelty and without any reason Appellant has deserted Plaintiff. Since conduct of Appellant towards Plaintiff is full of cruelty and she has also deserted Plaintiff as such he/Plaintiff filed suit for divorce on the aforesaid grounds under Section 13 (1) of Hindu Marriage Act, 1955 (hereinafter referred to as Act, 1955).
7. After institution of suit, summons were issued to Appellant. Summons were refused to be received by Appellant herein. Same were thereafter sent by registered post. Ultimately, service upon Appellant was affected by way of substituted service by getting publication made in a Daily Newspaper 'Janwarta' in its Edition Dated 17.01.2008. Despite of aforesaid, Appellant did not appear in the suit.
8. Plaintiff in order to prove his case adduced himself as P.W.-1, Arvind Kumar Chauhan as P.W.-2 and Akhilesh Kumar Chauhan as P.W.-3. Vide list of documents Paper No. 20Ga, Plaintiff filed copy of charge sheet and F.I.R. pertaining to Case No. 7751 of 2007 (State Vs. Ahok Chauhan and others) under Section 302 I.P.C., P.S. Sarnath, District-Varanasi.
9. Court below proceeded to decide suit filed by Plaintiff ex-parte as in the opinion of Trial Court, in spite of service of notice, Appellant failed to appear in suit.
10. According to Court below, Plaintiff filed suit for divorce on the grounds of 'cruelty' and 'desertion', which are recognized as grounds of divorce under Sections 13 (1) (i-a) and 13(1) (i-b) of Act, 1955. For ready reference Sections 13 (1) (i-a) and 13(1) (i-b) are reproduced herein-under:
" 13. Divorce--(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--
"(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty;
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petitioner;"
11. It may be noted here that marriage of parties was solemnized on 03.05.2005 and suit for divorce was filed on 29.08.2007. Therefore, as per mandate of Section 13(1) (i-b) of Act, 1955, a period of two years must have preceded on 29.08.2007. Trial Court concluded that in para 10 of plaint, it has been pleaded that Appellant alongwith her father and brother came to her matrimonial house when mother of Plaintiff was all alone at home. In view of aforesaid, it cannot be said that a period of two years have rolled by immediately before presentation of suit. As such, ground of desertion pleaded by Plaintiff is misconceived. The mandatory period required to have lapsed for taking the plea of desertion is not satisfied in the facts and circumstances of the case. In respect of cruelty, Trial Court concluded that in order to prove cruelty, Plaintiff has got examined himself and one Akhilesh Kumar Chauhan and also filed Documentary evidence i.e. photocopy of F.I.R. and charge-sheet. However, no evidence was adduced on behalf of Appellant contradicting averments made in plaint. Consequently, simply on the aforesaid ground, Court below concluded that commission of 'cruelty' by Appellant upon Plaintiff is proved and consequently, suit for divorce filed by Plaintiff was decreed on the ground of 'cruelty' vide judgement dated 8.5.2008 and decree dated 4.8.2008.
12. On coming to know of aforesaid exparte judgement and decree Appellant filed an application dated 03.10.2008 (Paper No.4Ga) under Order IX Rule 13 C.P.C. for recall of exparte judgement dated 25.07.2017 and decree dated 23.08.2018 passed by Principal Judge, Family Court, Varanasi. Since there was a delay in filing recall application, an application under 5 of Limitation Act was also filed for condonation of delay in filing recall application.
13. No objection was filed by Plaintiff to delay condonation application or recall application filed by Appellant. Vide order dated 11.11.2011, Court below allowed delay condonation application (Paper No.6 ga) but ultimately rejected recall application (Paper No. 4 Ga) vide order dated 25.7.2017 and formal order dated 23.8.2017.
14. A perusal of order dated 25.07.2017 will go to show that Court below rejected the recall application filed by appellant by recording a finding that grounds shown by Appellant regarding knowledge of ex-parte decree are not believable. It was further observed that in spite of service upon Appellant by substituted mode, i.e., by way of publication in Newspaper, she did not appear and participate in proceedings, as such there is no ground to allow recall application filed by Appellant.
15. Feeling aggrieved by order dated 25.07.2017 and formal order dated 23.08.2017, Appellant has filed First Appeal No. 737 of 2017 (Smt. Saroj Singh Chauhan Vs. Arvind Kumar Chauhan) whereas First Appeal No. 672 of 2018 (Smt. Saroj Singh Chauhan Vs. Arvind Kumar Chauhan) has been filed challenging ex-parte judgement dated 08.05.2008 and decree dated 04.08.2008.
16. We have heard Mr. T.N. Tiwari, learned counsel for Appellant. Challenging the judgement and decree as well as order passed by Court below, learned counsel for Appellant invited attention of Court to original record of court below. He submits that there is nothing on record to show when summons were issued and on which date, they were refused to be received by Appellant. There is no report of Process Server on record proving aforesaid. He then submits that on record there is only a receipt issued by Postal Department but there is no acknowledgment or endorsement by postal Official available on record to show that notices sent by Registered Post were sought to be served upon Appellant but she refused. He lastly submits that publication has been made in Daily Newspaper 'Janwarta' in its Edition Dated 17.01.2008, which is not having wide circulation in District-Varanasi. He thus submits that procedure adopted for service upon Appellant is contrary to the mandate of Order 5 Rules 12, 17, 18 and 20 C.P.C. Hence impugned judgement and decree passed by Court below being ex-parte against Appellant are liable to be set aside by this Court.
17. Before proceeding to consider correctness of submissions advanced by learned Counsel for Appellant, it will be appropriate to reproduce Order 5 Rules 12, 17, 18 and 20 of C.P.C. for ready reference:
"12. Service to be on defendant on person when practicable, or on his agent--Wherever it is practicable service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.
17. Procedure when defendant refuses to accept service, or cannot he found--Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.
18. Endorsement of time and manner of service--The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.
20. Substituted services--(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.
(1-A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.
(2) Effect of substituted service-Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(3) Where service substituted, time for appearance to he fixed -Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require."
18. We ourselves have examined original record. Suit was presented on 31.08.2007 and summons were issued to Appellant on 31.08.2007 itself. Summons were returned on 17.11.2017, 'unserved'. There is no report of Process Server on record. On 27.11.2007, Court passed an order that fresh steps be taken for service. Steps were taken on 01.12.2007 for service upon Appellant. On 07.01.2008, an application (Paper No. 11Ga) alongwith affidavit (Paper No. 12 Ga) was filed by Plaintiff for service of notice on Appellant by Publication. On this application, Court passed an order that Steps be taken within a week. On 10.01.2018, Court passed an order that notice be served upon Appellant by Publication in Newspaper. Accordingly Publication was made in Daily Newspaper "Janwarta" in its Edition dated 17.01.2008. On record we also find a receipt issued by Postal Department in respect of registry sent to Saroj Singh Chauhan, wherein her address was shown as R/o Cantt. Varanasi. It may be noted here that address of Appellant shown in plaint of Matrimonial Petition is S 2/214 Rhitori Mahal, P.S. Cantt. District-Varanasi. There is nothing in order-sheet to show that Court permitted Plaintiff to serve notices upon Appellant, by registered post.
19. When procedure adopted by Court below for service upon Defendant-Appellant is examined in the light of provisions contained in Order 5 Rules 12, 17, 18 and 20 of C.P.C, this Court finds that there is no compliance of Order 5 Rule 17 C.P.C. Secondly, there is no endorsement by Process Server in terms of Order 5 Rule 18 C.P.C. nor Court below has examined Process Server under Order 5 Rule 19 C.P.C. Service of summons by Registered Post which is contemplated under Order 5 Rule 19A, came to be omitted by Act 46 of 1999. Therefore, no service by registered post could be made. Lastly, Court below has not complied with the mandate of Order 5 Rule 20 C.P.C. before directing service upon Defendant-Appellant by way of substituted service.
20. Having examined relevant provisions of law in the light of facts of the case, we are satisfied with the plea taken by Appellant that no summons were served upon her, prior to passing ex-parte judgement and decree. We are also satisfied that Court below did not record its satisfaction that Publication has been made in a Daily Newspaper, which has vide circulation in the locality in which Appellant resides. Lastly, this Court is not unmindful of law laid down in Ramji Dass and Others Vs. Mohan Singh, 1978 ARC 496 (SC), wherein Supreme Court has observed that a judgement after hearing parties is far far better than a judgement which is ex-parte. For ready reference, relevant observations made in Ramji Dass (Supra) are quoted herein under:
"An ex parte decree passed eight years ago was set aside by the Court which passed it and the order was confirmed in revision by the District Court. The High Court, in exercise of its powers under Section 115 C.P.C, set aside on various grounds. After having heard counsel, we are inclined to the view that, as far as possible, Courts' discretion should be exercised in favour of hearing and not to shut out hearing. Therefore, we think that the order of the High Court should not have been passed in the interests of Justice which always informs the power under S. 115 C.P.C. We, therefore, set aside that order and also the ex parte decree. We direct the trial court to take back the suit on file and proceed forthwith to trial. The suit is very old and it should be disposed of within six months from the receipt of this order by the trial court. We further direct that as a condition for setting aside the ex parte decree, the appellants shall pay to the respondent, within one month from today a sum of Rs. 250/- by way of costs."
21. In view of discussion made above, we have no hesitation to allow these Appeals. Accordingly, both Appeals are allowed. Judgement dated 25.07.2017 and formal order dated 23.08.2017 rejecting recall application filed by Defendant-Appellant under Order IX Rule 13 C.P.C. and as well as Judgement and Decree dated 08.05.2008 and 04.08.2008 decreeing suit of Plaintiff-Respondent ex-parte are set aside. Marriage Petition No. 565 of 2007 (Arvind Kumar Chauhan Vs. Saroj Singh Chauhan) is restored. Defendant-Appellant shall be permitted to file her written statement and thereafter, Court below shall proceed to decide the marriage petition on merits afresh.
22. Appellant shall be entitled to her costs, which we assess at Rs.50,000/-. Amount of cost shall be deposited by Plaintiff-Respondent before Court below by way of Bank Draft payable to Defendant-Appellant. Aforesaid deposit shall be made withing a period of two months from today, failing which, Court below shall proceed to recover the same as a recovery under its own order.
Order Date :- 01.10.2019 YK