Andhra HC (Pre-Telangana)
Prakash Masih vs Shirin Masih on 19 October, 1994
Equivalent citations: I(1995)DMC38
JUDGMENT R.D. Shukla, J.
1. This is a reference under Section 17/20 of the Indian Divorce Act, made by Additional District Judge, Indore, in Civil Suit No. 366/91 for confirmation of a decree of judicial separation having the effect of divorce a mensa at thore.
2. Undisputed facts of the case are that the parties were married on 9.3.77 according to the Christian rites and customs. They lastly resided at Indore. Three children were born out of their wed-lock. They all are living with the petitioner. It is alleged that the respondent has gone to Oman in Central Asia and is living with Dr. Jagdish Prasad Yadav as his wife and is thus maintaining incestuous relation. The service on respondent was affected by publication. However, the respondent remained ex-parte As much ex-parte evidence was recorded and a decree, as above, has been granted.
3. We have gone through the record including the pleadings and evidence. Jagdish Prasad Yadav has not been made party in this case and permission for the same has not been obtained for the Court. On perusal of the plaint and order sheets it is clear that the petition was filed under Section 27 of the Special Marriage Act, thereafter, respondent was tried to be served during her stay at Indore, failing which the notice was served by publication in 'Swadesh' dated 24.6.88. In the Notice a reference under Hindu Marriage Act was given.
4. Neither in the petition nor in the Notice, allegedly served by publication any reference of Indian Divorce Act was made. The respondent has been proceeded ex-parte on the basis of the said publication. In our opinion, therefore, the Notice on respondent does not appear to be proper and cannot be accepted to have been served. It is not the case that respondent made appearance and knew the allegations in the case. There is every likelihood of respondent being mislead because of the reference of Hindu Marriage Act in the Notice and Special Marriage Act in the plaint and, therefore, the notice cannot be said to be proper.
5. As a result, we refuse to confirm the decree granted by the Addl. District Judge and remand the file with the direction that the petitioner may either be directed to amend the petition as per provisions of Indian Divorce Act and the summons be served on the respondent accordingly. In case the petitioner insists on proceeding under Section 27 of the Special Marriage Act the case may be decided according to law after service of notice on the respondent. Costs shall abide by the result of the petition.