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Jharkhand High Court

Jaya Kumari Singh vs Shrey Kumar @ Shrya Kumar on 18 October, 2022

Bench: Shree Chandrashekhar, Ratnaker Bhengra

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      (Civil Appellate Jurisdiction)
                      First Appeal No. 30 of 2021
                                   -----
Jaya Kumari Singh, wife of Shrey Kumar, daughter of Arun Kumar Singh,
resident of Karmik Nagar, PO & PS- Saraidhella, District- Dhanbad.
                                                             ... Appellant
                                 Versus
Shrey Kumar @ Shrya Kumar, son of Late Ashok Kumar Singh, resident of
Ratu Road, Near Reliance Fresh, Sukhdev Nagar, Indrapuri, Hehal, PO-
Hehal, PS- Sukhdev Nagar, District- Ranchi.
                                                            ... Respondent
                                      ------
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
               HON'BLE MR. JUSTICE RATNAKER BHENGRA
                                      -----
      For the Appellant :      Mr. Lukesh Kumar, Advocate
      For the Respondent:      Mr. Mahesh Tewari, Advocate;
                               Mr. Shankar Singh, Advocate
                                      -----
                                ORDER

18th October 2022 Per, Shree Chandrashekhar, J.

Though there is no substantial opposition to this application except stating that the appellant had knowledge about institution of the divorce suit, we are not inclined to entertain this application.

2. This application has been filed for incorporating a prayer in the present First Appeal seeking a declaration by this Court that marriage of the respondent solemnized on 30th June 2021 which according to him was registered on 2nd July 2021 was illegal and void ab initio.

3. It appears that the statement made by the respondent in reply to IA No. 2728 2021, which was an application seeking an order staying the operation of the judgment dated 26th March 2021 passed in Original Suit No.230 of 2020 wherein he disclosed that he has solemnized second marriage on 30th June 2021 which was registered on 2 nd July 2021, was the reason for filing the present application seeking the aforesaid declaration of nullity from this Court.

4. The learned counsel for the appellant submits that in view of the judgment in "Savitri Pandey v. Prem Chandra Pandey" (2002) 2 SCC 73 the period of limitation for filing the present First Appeal was 90 days during which period the respondent solemnized the second marriage and, 2 First Appeal No. 30 of 2021 therefore, the said marriage of the respondent must be declared illegal and void ab initio.

5. In the above context, we may refer to the decision in "Smt. Lila Gupta v. Laxmi Narain & Ors." AIR 1978 SC 1351 wherein the Hon'ble Supreme Court has observed that every marriage solemnized in contravention of one or the other conditions prescribed for valid marriage is not void. Moreover, the prayer sought to be incorporated in the First Appeal is based on a separate and distinct cause of action for which the appellant is required to seek a declaration by filing a fresh suit. This we have in mind that normally an application for amendment should be entertained liberally and even at the appellate stage amendment in the pleadings may be permitted by the Court. However, the prayer sought to be incorporated in the First Appeal by way of amendment if allowed would change the nature of the present appeal inasmuch as it would become composition of a First Appeal and a suit.

6. Therefore, we are not inclined to entertain the present application and the same is dismissed with liberty to the appellant to work out her remedy as available to her in law.

7. Original Suit No. 230 of 2020 has been decreed by an ex-parte judgment dated 26th March 2021 against which Jaya Kumari Singh has preferred this First Appeal under section 19(1) of the Family Courts Act, 1984.

8. On 18th June 2020, Original Suit No. 230 of 2020 (in short, "divorce suit") was instituted by Shrey Kumar @ Shrya Kumar seeking a decree of divorce by dissolution of his marriage solemnized with the appellant on 5th March 2017 at Karmik Nagar, Saraidhela, District Dhanbad, on the ground that his wife deserted him since 15th February 2018.

9. By an order dated 8th July 2021, the operation of the impugned judgment dated 26th March 2021 passed in the divorce suit has been stayed by a co-ordinate Bench of this Court.

10. The first ground of challenge laid by the appellant to the ex-parte judgment is that without a report on service of summons upon the appellant the divorce suit could not have been set for ex-parte hearing against her by the order dated 15th February 2021.

11. Per contra, Mr. Mahesh Tewari, the learned counsel for the respondent, has referred to an order passed by this Court in WP(C) No. 3265 of 2019 in which the judgments of the Hon'ble Supreme Court in "G.P Srivastava v. R.K Raizada & Ors." (2000) 3 SCC 54 and "Neerja Realtors Private Limited v. Janglu (dead) through legal representative" (2018) 2 SCC 649 have been relied upon, to submit that the appellant who had knowledge of institution of the divorce suit inasmuch as she had filed Transfer Petition (Civil) No.16 of 2020 but did not appear before the Family Court to contest the divorce suit is now precluded from raising a plea that no summons was served upon her in the divorce suit.

12. In the first place, we may indicate that against an ex-parte order/ judgment the aggrieved party has two options in law, either to file an application under Order IX Rule 13 of the Code of Civil Procedure or to prefer First Appeal under section 96 of the Code of Civil Procedure. The proceedings in divorce suit reveal that the plaint was presented on 18 th June 2020 and the divorce suit was admitted on 30 th June 2020 after the defect etc. were cured by the respondent. In the order dated 14th December 2020, the Family Court has recorded that from the tracking report it is found that the notice has been delivered to the respondent. On the next date of hearing, the Family Court accepted the statement made on behalf of the respondent that postal receipt and tracking report have been filed to establish that summons has been delivered to the other party.

13. Accepting the aforesaid statement made on behalf of the respondent, by an order dated 15th February 2021 the divorce suit was set for ex-parte judgment against the wife.

14. On 3rd March 2021, the statements of the witnesses on affidavit were filed by the respondent and photocopies of the order dated 4th December 2019 in ABA No. 6733 of 2019, marriage card, DD No.007726 of value of Rs.31,00,000/-, bill of ornaments, certificate regarding locker operation and a copy of Seraidhela PS Case No.147 of 2019 were brought on record and ex-parte evidence of the respondent was closed on 10th March 2021.

15. Thereafter, the argument on behalf of the respondent was heard on 19th March 2021 and ex-parte judgment was delivered on 26th March 2021.

16. We may now profitably refer to the provisions of Order IX Rule 13 of the Code of Civil Procedure which are extracted below:

"13. 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 decree was passed for an order to set it aside; and if he satisfies 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:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: 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.

Explanation.-- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree."

17. Under Order V Rule 1 of the Code of Civil Procedure summons shall be issued to the defendant to appear and answer the claim and to file the written statement of defence within 30 days from the date of service of summons upon him and Order V Rule 2 of the Code of Civil Procedure provides that every summon shall be accompanied by a copy of the plaint. Apparently, the object is to make the defendant aware of the facts pleaded and the grounds raised in the plaint. No doubt in cases where the defendant himself is not present in the house still summons can be deemed to have been validly served upon him provided the same has been served through an adult member of the defendant's family. In this context, this is also necessary to keep in mind that Explanation to Order V Rule 15 of the Code of Civil Procedure provides that a servant is not a member of the family within the meaning of this Rule. But the orders dated 14 th December 2020 and 29th January 2021 do not disclose in whose presence and upon whom the summons was served.

18. There is no postal receipt and the tracking report in the records about which the Family Court has referred to in the proceedings of the divorce suit. In the judgment in the divorce suit also there is no reference of any postal receipt or tracking report which was duly proved and marked as exhibit in the trial. Therefore, there is no material available on record to 5 First Appeal No. 30 of 2021 support the order dated 15th February 2021 by which the divorce suit was set for ex-parte hearing against the appellant on the ground that she had been duly served the summons.

19. The plea taken by the respondent in the present First Appeal that the appellant has notice of institution of the divorce suit inasmuch as she herself filed Transfer Petition (Civil) No.16 of 2020 cannot be the reason to lend support to the ex-parte judgment in the divorce suit. The argument raised on behalf of the respondent appears to be based on proviso to Order IX Rule 13 of the Code of Civil Procedure which provides that no party can be permitted to challenge an ex-parte order on the ground of irregularity in service of summons in which she had knowledge about the date of hearing and had sufficient time to appear and answer the petitioner's claim. However, the filing of the transfer petition was not pleaded before the Family Court in the proceedings of the divorce suit and while so the ex-parte judgment in the divorce suit cannot be supported in law by raising a plea that the appellant had knowledge about pendency of the divorce suit. Moreover, mere knowledge of pendency of the suit is not sufficient to apply the restriction under 2nd proviso to Order IX Rule 13 of the Code of Civil Procedure. Rather, it must be pleaded and proved that the other party had knowledge of the date of hearing and sufficient time to appear before the Court to answer the plaintiff's claim. These facts are not established by the respondent even in the present proceeding.

20. The second ground of challenge to the ex-parte judgment in the divorce suit is that the materials laid by the respondent during the trial of the divorce suit do not establish desertion by the appellant, as claimed by the respondent. In our opinion, this is a substantial ground to interfere with the judgment in the divorce suit. We may indicate here that even after the aggrieved party is not successful in his/ her attempt in getting the ex-parte order/ judgment set aside by an application under Order IX Rule 13 of the Code of Civil Procedure, he/ she still can prefer First Appeal under section 96 of the Code of Civil Procedure to challenge the order/ judgment on merits. Therefore, in this First Appeal the judgment and decree in the divorce suit can be examined and on being satisfied can be set aside by this Court in exercise of powers under section 19(1) of the Family Courts Act which is undoubtedly akin to section 96 of the Code of Civil Procedure.

21. The judgment under challenge is an ex-parte judgment but even in cases where the defendant did not appear or was absent after his appearance or was debarred from cross-examining witnesses of the either party, the Court is at all times required to examine the ex-parte evidence laid before it even more cautiously.

22. In "Maya Devi v. Lalta Prasad" (2015) 5 SCC 588 the Hon'ble Supreme Court has cautioned the trial Courts in dealing with ex-parte proceedings, as under:

"41. The absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the plaintiff's claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the trial court as well as the executing court to be fully satisfied that the claim has been proved and substantiated to the hilt by the plaintiff. Reference to Shantilal Gulabchand Mutha v. Telco Ltd., will be sufficient. The failure to file a written statement, thereby bringing Order 8 Rule 10 CPC into operation, or the factum of the defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order 8 Rule 10 CPC and on the invocation of Order 9 CPC, the court is nevertheless duty-bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted."

23. In the divorce suit, the respondent examined four witnesses including himself as PW4.

24. The Family Court Judge has taken note of evidence of PW4 as under:

"P.W.-4 is petitioner Shrey Kumar @ Shrya Kumar himself. He has stated in his examination-in-chief that his marriage with respondent was solemnized on 05.03.2017 at Karmik Nagar, Saraidhela, Dhanbad, according to Hindu rites and rituals and thereafter they started to lead their conjugal life at Indrapuri Road, Hehal, P.S. Sukhdeonagar, District Ranchi. From this wedlock they blessed with a daughter on 28.09.2018. It is stated that during stay the behaviour of the respondent was not good and usually used to cruel with him and ignored him. He has stated that there the respondent always used to tell that she belongs to a rich family and she could not adjust with the petitioner and on small cause the respondent took knife to kill herself, however, he snatched the knife. He has stated that there is no marital relationship with respondent since 15th February, 2018 and respondent deserted him and told that she does not able to lead marital life with him. On 26.02.2019 she went to her Maika with her all belongings and ornaments.

During examination-in-chief following documents have been marked exhibit and for identification.

Exhibit-1 is Marriage Card, ID mark X is the Bill of Ornaments, ID mark X/1 is the Certificate regarding Locker Operation, ID mark x/2 is the Down Loaded order passed by the Hon'ble High Court in Anticipatory Bail Application No. 6733 of 2019, ID mark x/3 is the Saraidhela P.S. Case No. 147/2019, ID mark x/4 is the D.D. No. 007726 of Value of Rs. 31,00,000/-."

25. The Family Court has observed that two employees of the husband who were examined as PW1 and PW2 and the mother of the respondent who is PW3 have supported the case through their evidence.

26. The Family Court has considered their evidence as under:

" 8. P.W. 1 Chandra Bhushan Sharma, a employee of the petitioner, P.W. 2 Santosh Kumar, another employee of the petitioner and Ranjna Singh, mother of petitioner, have supported the case of the petitioner in their respective examination-in- chief."

27. On the basis of the aforesaid consideration of the ex-parte evidence, the Family Court has held as under:

"10. From the evidence of petitioner and his witnesses it has come in the evidence of the petitioner that his wife has deserted him since 15th February, 2018 and this case has been filed on 18.06.2020. At the time of filing of this suit the desertion has been completed for two years. The petitioner has filed down loaded copy of the order of Hon'ble Jharkhand High Court passed in Anticipatory Bail Application (A.B.A) No. 6733 of 2019 dated 04.12.2019 by which the petitioner was granted anticipatory bail on payment of Rs.31,00,000/- (31Lacs) as interim maintenance to the respondent which has been marked X/2 for identification. It is mentioned in the order of Hon'ble High Court "that the Opposite Party no.2 is not ready to resume the conjugal life with the petitioner." The order-sheet of Saraidhela P.S. Case no., 147/2019 shows that petitioner has received Rs.31 Lacs through DD No.007726 dated 11.08.2020 Punjab & Sindh Bank."

28. Not only consideration of the respondent's evidence by the Family Court is cryptic, the aforesaid finding on 'desertion' recorded in paragraph No.10 is clearly a misreading of the evidence of PW4. The respondent has stated that the relationship of husband and wife was strained and on 26th February 2019 his wife left the matrimonial home with all her belongings and jewelleries and thereafter did not come back to her matrimonial home. These statements have been made by the respondent in paragraph Nos. 12 & 13 of his examination-in-chief, which are extracted hereinbelow:

"12. यह क व पक स पव पत र स क न 15 फ 2018 स ल आज नह ह बव उसन मझ पर तय ग (deserted) कय ह थ ह ह ह% क ह म स थ वह वजन ग नह वब एग ।

13.यह क व पक क न 26.2.2019 ) अपन म य रम, नग , स यढल , धनब , अपन प/ स म न, ल0 म1 ख हए प/ गहन ए म प न प/ गहन म ह घ स अपन म 5 इ ससह ए अपन भ ई रण म ससह स थ ल चल गई ब स ह ह ह ह औ म घ म1 भ नह आई।"

English translation "12. That there has been no relationship of husband-wife with 8 First Appeal No. 30 of 2021 opposite party from the date 15th February, 2018 till today rather she has deserted me and she would say that she would not spend married life with me.

13. That the opposite party on 26.2.2019 took all her belongings, all her ornaments kept in the locker and all the old ornaments of my grandmother from my house with her mother Ira Singh and brother Tarun Kumar Singh to her maternal home, Karmik Nagar, Saraidhela Dhanbad and she has been living there since then and never came to my house."

29. The aforesaid statements made by the respondent are his admission that his wife left his company only on 26 th February 2019. Apparently, the Family Court committed a serious error in law in holding that the appellant deserted her husband on 15th February 2018 and did not join his company for the next two years and, therefore, the respondent was entitled for a decree of divorce under clause (i-b) of sub-section (1) to section 13 of the Hindu Marriage Act, 1955.

30. If every act of a wife expressing her pleasure or annoyance with her husband and leaving for her parents' place is construed as desertion, very fabric of the Indian society would be fragmented and there may be divorce suit filed by either of the spouse everyday. The expression 'desertion' as contemplated under clause (i-b) of sub-section (1) to section 13 of the Hindu Marriage Act, 1955 must comprise two elements, both together - intention to leave company of the spouse permanently and the act of leaving. Both these elements must coincide at a single point of time to constitute desertion under clause (i-b) of sub-section (1) to section 13 of the Hindu Marriage Act, 1955.

31. The Judicial Committee of the Privy Council in the case of "Lang v. Lang" (1955) AC 402 in an appeal from the decision of the High Court of Australia, observed to the following effect:

"Both in England and in Australia, to establish desertion two things must be proved: first, certain outward and visible conduct

- the 'factum' of desertion; secondly, the 'animus deserendi' - the intention underlying this conduct to bring the matrimonial union to an end."

32. In our opinion, the ex-parte judgment in the divorce suit is flawed for more than one reason. There was no proper service of summons upon the appellant and even assuming that she had knowledge of the divorce suit (though this fact was not pleaded before the Family Court), the ex-parte judgment against the appellant is liable to be set aside on merits.

33. In view of the aforesaid discussions, the judgment dated 9 First Appeal No. 30 of 2021 26th March 2021 passed by the learned Principal Judge, Family Court, Ranchi in Original Suit No. 230 of 2020 is set aside and, accordingly, First Appeal No. 30 of 2021 is allowed.

(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated-18th October 2022 Sharda/S.B.-NAFR