Rajasthan High Court - Jaipur
Manish Soni vs Usha Soni And Another on 8 March, 2013
Author: Amitava Roy
Bench: Amitava Roy
In The High Court Of Judicature For Rajasthan Bench At Jaipur D.B. Civil Misc. Appeal No.4907/2012 Manish Soni v. Usha Soni Date of judgment March 8, 2013 Hon'ble the Chief Justice Mr. Amitava Roy Hon'ble Dr. Justice Meena V. Gomber Mr. L.L. Gupta, for appellant Mr. D.D. Khandelwal, for respondent
[per Hon'ble Gomber, J.] Heard.
2. In challenge is the order of learned Family Court, Jaipur passed on 6.11.2012, whereby the respondent's application seeking setting aside ex parte decree of divorce dated 14.10.2010, was allowed.
3. Briefly stated facts, so far as they are relevant for the purpose of disposal of this Misc. Appeal, are that the appellant filed a petition against the respondent under Section 13 of the Hindu Marriage Act, seeking divorce on the ground of cruelty. However, the petition was amended and alleging the respondent to be mentally sick person, she was sued through guardian (her father) Shri Motilal Soni.
4. Notices were issued and the learned Family Court, treating the service of notice sufficient, proceeded ex parte against the respondent and on the basis of evidence led by the appellant, an ex parte decree of divorce was passed on 14.10.2010.
5. It is thereafter on 4.5.2011, that the respondent moved application under O.IX R.13 of the Code of Civil Procedure (herein-after for short referred to as 'the Code') along with an application for condonation of delay, with the averments that she had no notice/knowledge of the proceedings as she lived in Kolkata with her brother and parents and on 2.5.2011, when her parents came from Kolkata and visited their relatives, they saw the wedding card of appellant's remarriage, and informed her about it. On getting the information, she flew from Kolkata and found out about it and after obtaining legal advise and certified copies, she moved the applications in question.
6. Her stand was that the notices of proceedings initiated by the appellant under Guardians & Wards Act, had been sent and served upon her at her Kolkata address but despite knowing that she lived in Kolkata, intentionally sent those notices at Sujangarh address because he wanted to obtain divorce decree secretly. According to her, she along with her parents and children stayed in Kolkata with her brother, whereas in her parental house at Sujangarh, her other brother and his wife Gineeta Soni were living. Further, that learned Judge, Family Court while treating the service as sufficient did not appreciate that Process Server, at the time of giving the notice to Gineeta Soni, wrote in his report that he was informed about respondent's residing at Kolkata but no notices were sent to Kolkata nor were any steps taken for substituted service. Moreover, the receipt of notice by Gineeta Soni without there being any evidence regarding her informing the respondent or her father Shri Motilal Soni, could not be said to be sufficient service but learned Family Court also overlooked this fact while proceeding exparte.
7. The application was strongly contested by the appellant stating that notices sent to her Sujangarh address had been received by her bhabhi Gineeta Soni, who, as is clear from Process Server's report, while receiving the notice, undertook to inform her. Further that in all the proceedings instituted by respondent viz. her complaint for offence under Section 498A IPC, application under the provisions of Domestic Violence Act etc., as also in her application under Section 125 CrPC, she has shown herself as addressee of Sujangarh. She also signed the Vakalatnamas, which were filed in Sujangarh Courts and all these documents are of the same period. Therefore, the respondent's contention that she lived in Kolkata and had no knowledge of the proceedings, is totally incorrect. Further, that in view of his second marriage after the period of expiry of appeal, no fruitful purpose could be achieved by allowing the application, hence prayed for its dismissal.
8. Learned Family Court, after hearing the parties and perusal of material, allowed the application vide its order impugned and set aside the ex parte decree dated 14.10.2010, which has been assailed before us.
9. Considered the rival contentions advanced before us and perused the record of Family Court. The record shows that the petition was filed against the respondent through guardian (her father) Shri Motilal Soni but admittedly no notice was ever sent to him. The record further reveals that service of notice, which has been held to be sufficient by learned Family Court, was, in fact, received by Smt. Gineeta Soni, who happens to be the wife of respondent's brother, living at Sujangarh address. There is no evidence to show that Smt. Gineeta Soni informed the respondent or her father-in-law Shri Motilal Soni about receipt of said notice by her. Moreover, the Process Server's report available in Part II of the case-file also shows that he was informed about respondent's residing in Kolkata but as per his report, Smt. Gineeta Soni, while receiving the notices, undertook to inform the respondent but there is nothing to show that she, in fact, informed. There is one more strong circumstance against the appellant that in his proceedings filed under the Guardians and Wards Act, substituted service by way of publication in a newspaper in Kolkata was effected upon the respondent but in the present proceedings, neither service was sent to Kolkata nor were any steps taken for substituted service.
10. The appellant's argument with regard to the proceedings filed by respondent showing her as addressee of Sujangarh, has been appreciated by learned Family Court at page 9 of the impugned order. Admittedly, the FIR lodged by her is dated 7.6.2011, Vakalatnamas of 21.5.2010 and 6.6.2011 and the order-sheet showing her signatures, is dated 22.5.2010, showing respondent as an addressee of Sujangarh but these documents, by themselves, do not go to prove that respondent lives in Sujangarh and that she had the notice of proceedings.
11. Be that as it may, but this fact cannot be ignored that the appellant filed the divorce petition against his wife through her guardian Shri Motilal Soni, but there is no evidence to show that Shri Motilal Soni was ever served. The copy of notice showing the signatures of Gineeta Soni as recipient, also bears the recital of the Process Server that he was informed about the respondent residing in Kolkata, but learned Family Court has not appreciated this fact while treating the service as sufficient. Moreover, said notice was issued for 29.3.2010 and as per the order-sheet dated 29.3.2010 till that date notices served or unserved, had not been received, hence order for issuing fresh notice was passed fixing the matter for 28.6.2010. But on 28.6.2010, treating the service of notice on Gineeta Soni for the earlier date, the order of ex parte was passed. The registered notices had also been received back with the report - left.
12. So far as the argument with regard to the remarriage of appellant is concerned, we are of the considered view that just because the appellant has remarried, the requirement of proper service cannot be done away with. Judicial pronouncements in the matter of Parimal v Veena, AIR 2011 SC 1150, as also in the matter of Sunil Poddar & others v. Union Bank of India, AIR 2008 SC 1006, do not help the appellant because the present case is not a case of irregular service. In the case of Parimal (supra) the respondent wife had refused to accept the notice and the Process Server had, on oath, proved this fact but the affixation was not done by him. Moreover, in that case, application seeking setting aside the decree was filed after four years and after the birth of two off-springs out of the second wedlock. In that case the Hon'ble Apex Court held that there has to be a sufficient reason and that only irregularity in the service, is not a ground to set aside an ex parte divorce decree. Here is a case where the fact of the respondent's living in Kolkata had come on record. Still notice was not sent to Kolkata but at Sujangarh.
13. On the basis of discussion made herein-above it can safely be said that there was no proper service on Shri Motilal Soni, the guardian through whom respondent was sued and the service effected through Smt. Gineeta Soni in Sujangarh, despite there being an information that respondent lived in Kolkata and there being no evidence of Smt. Gineeta Soni informing the respondent or her father about the receipt of the notice could not be said to be proper service in the eye of law. We find that learned Family Court has not committed any error by allowing the application filed by the respondent. Consequently, we do not find any merit in the appeal, which being devoid of merit, deserves to be dismissed and is hereby dismissed. Order dated 6.11.2012 passed by learned Judge, Family Court No.1, Jaipur in petition No.11/2011 is upheld. Parties are directed to appear before Judge, Family Court No.1, Jaipur on 15.4.2013.
(Dr. Meena V. Gomber) J. (Amitava Roy) CJ. db
[All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya P