l\-v; First Asseal No. 178/2( Smt. Sharda Shar-ma Vs. Santosh Sharma Post for Judgment /fc .04.2007 Sd/- Dillp Raosaheb Deshmukh j .Judge RESPONbENT APPLICANT 3o. Smt. Sharda Sharma, wife of Shri Ssntosh Sharma, aged about 31 years, Nawaparam, Rajim, Tehsll and District Rcipur (C.6.) Vsrsus Sontosh Sharma, 5/o Kalaktor aged 34 years, resident of Shiv Nagar Vishwakarma Tehsil and District ftaipur Para, , Raipur, Smt. Renu Kochcr, Counsei for tiie Gppeilant/non-applicant. Smt. Fouzia Mirza, Counsel for respondent/applicant. J_U.D6 (Dslivered on this Id day of Aprii, 2 Being aagrieved by the a*c parte judgment and decree for dissolution of marriage, dated 17.07.2002 in Civil Suit No. 95-A of 2001 passed by Smt. Nirmals Singh, 5 Additionai bistrict Judge, Raipur", -i+ie opp.ellant/non-applicant wife has preferred this appedl. 2. This is an example of how in a matrimoniai matter serious consequences follow in the life of the appeliant/wife due to a most depiornble monner in which the tricl was conducted by the triai Judge (^ before granting an exparte decree for dissoiution of marriage at the mere ipsi dixi+o£the i'espondent/applicant. 3. Appellant preferred the cppeal on 16.08.2003 contending that the learned iower Court committed a grave error of law in passing the impugned ex parte judgment and decree in favour of the respondent on the following grounds: (a) the judgrpent and decree is contrary to iaw and wateriai available on record; (b) no notice of the suit had been served on the appeilimt much less for the date fixed for 05-02-2002 on which dcte the Court proceeded ex parte agamst her; (c) no evidence documentary or orci was adduced to prove that the appellant had failed to discharge her conjugat ri9hts; (d) the report iodged by the father of the respondent on 12.12.1993 clecrly estcblished the fa'lacy of aliega/tions levelled by the respondent/qspiicant. 4. Aiong with the appeai the appetiant also fiied an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal on the foilowing grounds: i. That the appellant only in the last week of June 2003 came to know that the rsspondent has serformed second marr-iage after obtaining the ex parte judgment and decree of divorce. That after knowing this fact the appellant lodged a report against the respondent ond his father at Police Station ©obra Nawapara on 1.7.2003, a copy of FIR is annexed hereto as ANNEXURE A-l. 3 iii. TTiat the delay occurred in filing the cypeal is bonafide snd d'eserves to be condoned. The deiay in filing the oppeal was condoned vide order dated 19.01.2007. 5. Santosh Sharma, the respondent herein, filed a petition under Sectioi'i-13 of Hindu Marriage Act, 1955 piereinafter referred to as the Act 1955) for dissolution of inarriage on tiie ground that a year after their marriage on 25.02.1988, Lakhon Shcrma, brother of the appeiiant herein, took the appellant and the respondent to the maternal home of the cppeliant in Badhaipara, Nciwapara, Rajim where the respondent lived for a period of 6 -7 months. Since the parents of the appe!tant herein ill-treated 1+ie respondent, he returned alone to his house at Raipur. A month thersafter, the respondent herein went to Nawapara, Rajim to bring the oippeilant herein home but he was ill- treated by 1+ie parents ond brother of the appeliant herein and the cypellant also refused to return to her mo.trimonial home. Thereofter, on many occasions, the respondent went to Nawapara, Rajini with his father and the Pwichas to bring the appellant home but the appellant refused. On 12.12.1993, Kaiaktor Sharma, father of the respondent also went to Nawc^ara, ftajim to bring the appellant home but father of the appellont misbehaved and refused to send the appettont with him to Raipur. A report was lodged in Poiice Station, Rajim on 12.12.1993 by Kalator Sharma, father of the respondent. More than 5 years t+iereafter on 21.05.1999, the r-espondent, his father and uncle of respondent-Sulab Sharma went to Nawapcra, Rajim to bring the Qppellant home but 1+ie appellont agam refused. The son born out of 1+ie mar'ital wedlock was aged 10 ye.ws and therefore, the respondent was willing to keep tiie appe!lant wlth him and with that intention about two months prior 1-0 the filing of the npplication on 10.05.2001, the respondent kad a9ain gone to Nawapara, ftajim but the appellont, her parents and brother iil-treated him and the appeilant also refused to return to her matrimoniai home. Thereafter, on 14-03-2001, a re9istered notice with acknowledgment due was sent by the respondent herein, Despite receipt of notice, the appeliant neither replied nor retumed to her matrimoniai home. It was contended •t+iat the appelicmt herein was residing away from the respondent for more thon 10 years without estab!ishing conjugal relationship, and therefore, it wos prayed that the marriage between the parties be dissolved. 6. Upon filing of the petition on 10.05.2001, the tria! Judge ordered that on payment of P.F. within three days summons be issued 1-0 the appeiiant/non-cpplicant in the ordinary course as aiso through registered post for fiiing writtsn statement and aiso for reconciliation. On the next date i.e. 24-07-2001, it was mentioned in the order sheet that the summons was not issued because the process fee was not paid. The respondent herein was directed to poy process fee within 3 days for issuance of summons to the appeltant/non- applicant in the or'dinar'y course as a!so by registered post for filing of written statement and reconciliation on the next date i.e. 14.09.2001. On 14.09.2001 and thereafter on the next date i.e. 22.11.2001 the trial Judge was on ieove and 1+ie matter wus cdjourned. It was noted by the Reader in the orde" sheet dated 14.09.2001 that the appeilant herein/non-cpplicant was absent and the surnmons issued in the ordinary course as oiso by registered post were returned with the endorsement of refusal. On 05.02.2002 although no fresh summons was issued to the appeliant/non-qipticant for appearance on 05.02.2002. it was mentioned in the order sheet that the non- applicnit was sbsent and had refused to accept the summons. Neither the form in which P.F. is paid nor any summons issued in the ordinary course and duly retumed after refusai by 1+!e appellqnt/non- applicant is seen on the record of the lower Court. There is no endorsement about issuonce of summoris in the mnrgin of the orcer* sheet a!so. The Trial Judge, without noticing the fact that the respondent/applicant had not paid P.F. for issuimce of notice In the ordinary course and no summons in the ordirsary course had either been issued or receivad unserved, ordered 1+iat the appeltant/non- appiicant be proceeded ex parte and thereafter fixed the matter for recording exparte evidence. 7. The trial judge completely lost sight of the fact that the register'ed notice issued to the appeliant/non-applicant wlfe through Court had an endorsement which was highly suspicious because the endorsement made by the Post-ffian was completely scratched so os to be rendered iilegibie and thereafter some endorsement was mads on top of i* which was earlier dated 17-07-2001 but was later on forged to look liks 17-08-2001. The registered notice was issued vide order dated 24-07-2001, ther-efore, the endorsement of the Post-man could not haye been dcted 17-07-2001. Another factor which was overiooked by the triai Judge is that or'iginal acknowledgment of receipt of notice dated 14-03-2001 was not filed by the o.ppiicant/respondent. It is also pertinent to note 1+iat in the report lodged on 12-12-1993 by the father of the appiicant/respondent, it was not msntioned that the cppellant herein had refused to iive with the appiicant/respondent. The alle9ations were only against the father of the appellant herein. The trial Judge ought to have taken into consideration ali these facts instead of mechanlcally recording evidence on a petition under Section-13 of the Act. The triai Judge also overlooked tiie fact that the summons was ordered to be issued for reconcifiation and that on the date fixed for reconciiiation efforts the trial Judge was on ieave. It was ciso oyeriooked that the trial Judge was again on leave on the next date. It was also overlooked that on 05-02-2002 there was no material on recor-d to show that any summons had been issued a9ain.st the appeiiant/non-appticont for oppearance before the Cou-t or had been "eceived unseryed for 5.2.2002. The Triai Judge completely obiiyious of the serious consequences of her utterly negligent approach mechanicaliy recorded ex parte w\de.ncs of the respondent/applicant as a mute spectator on 29-04-2002 and did not ask a ssngle Court question to verify the truth. Time was sought by the respondent/applicoint for cdducing more evidence. On the next date i.e. 02-05-2002 time was a9ain sought by the resporsdent/applicant and the matter wcs adjourned for reniaining evidence ors 12-07-2002. It dld not occur to the trial Judge that despite several cllegations in the petition against the parents of the appellctnt/non-applicant and the availability of the wilnesses, tiie respondent/applicant had failed to adduce any evidence. On 12-07-2002, counsel for" ths appiicant did not lecd any evidence uid declcred evidence of the oppiicant closed. Arguments were heacd on the same doy and the case wcs posted for judgment. On 17-07-2002 an ex parte judgment and decree grantin< dissoiution of marria9e between two spouses was passed ct the mere ipsi cfixitof the respondent/applicouit. 7 9. The trial Judge also did not notice that along with petition for obtaining divorce, the respondent/ttpplicant had filed c document dated 12-12-1993 belng a report lodged by the fathe" of the respondent at P.S. Rajim. It clearly mentions that on the dote of the report i.e. 12-12-1993 the appiicant had a son aged 1 i years frcm the appeiiant herein. The iearned tria! Judge comptetely ignored this document which revecled that conjugal relationship between the two spouses had continued definitety tili June 1992 because the son of the applicoint and the respondent was aged 1 i ysars on 12-12-1993 and was living with her tnother. It positiveiy shows that the contention of the applicant/respondent in the petition under- Section-13 of the Act that somewhere fr-ow May-June 1990 the appellant/non-applicant had refused to retum to her matrimonia! home and did not establish conjuga! relationship with the respondent/applicont was utterly fcise. Section the Ape; The trial Judge olso compisteiy iost sight of its obiigation under 23 sub-sections (2) and (3) of the Act. The obseryations of Apex Court in Balwinder Kaur v. Hardeep Sinqh, AIR 1991 Court" 764 need to be reproduced herein for guidance of the judges presiding over the family courts: "A petition for divorce is not iike any other commercia! suit. A divorce not only affects the parties, their children, if any, and their families but the societv aiso fesls its reverberations. Stress should always be on preserving the institution of marriage. That is the requirement of law. One may refer to the Objects and Reasons which led to sstting up ot i-amily LourTS uncter rne rQmsiy LourTs Act, 1984. For t+ie purpose of settiement of famliy disputes emphasis is "laid on conciliation and achieving socicily desirable results" and eliminctin< adherence to r'igio' rules of procedure and evidence. TTiese further note: 8 "The Law Commissior! in its 59+ Report (1974) had also stressed that in deaiing with disputes concerning the famiiy the Court ought to adopt an approach radicaliy different from that adopted in ordinary civil proceed'mgs and that it should mctke reasonable effcrts at settlement before the commencemsnt of the trici. The Code of Civil Procedure wos amended in 1976 to provide for a special procedure to be adopted in suits or- proceedings relating to mattes concerning the family. However, no much use has been made by the C.ourts in adopting tiiis concillatory procedure and me Courts continue to deal with famity dispu-rea in 1+^e same manner as other civil matters and the same advisory (adversary) approach prevails." It is now obligatory on the part of the Fa>niiy Court to endeovour in the first instonce to affsct a reconciiiation or settlemsnt between the parties to a Family d'spute. SecTion 23 of the Hlndu AAarriage Act mandates the Court before granting decree for divorce, whether defendoint or not to satisfy itself [1) if the grounds for claiming reiief exist and the petitioner is not takin9 Qdvanta9e of his or her own wrong or disabiiity for' the purpose of such reiief, and (2) the petitioner hos not in any manner been accessory to or connived at or condoned the act or ccts complained of; o" whsre the ground of the petition is cr'uelty the petitioner has not in any manner condoned the cruelty. A duty is also cast on the Court in the first instant, in every cas®where it is oossibie so to do consistently with the natur'e and circumstonces of the case, to make every endeavour to bring about a reconci'iation between the partiss. Under sub-sec. (3) of 5.23 of the Act, the Court con even refer the ma^er to any person named by the poirties for the purposes of reconciliation and to adjourn the matter for that purpose. These objective and principles govern ail courts trying mctr'imonial matters. The judgment of the District 9 Judge is silent if the learned Judy took into consideration nll what is mentioned in 5.23 of the Act. A question also arises can a party defeat the provisions of sub-ssction (2) and sub-section (3) of 5.23 of the Act by remaining ex parte and the Court is hetpless In requiring tiie presencs of that part/ even if the circumstances of tiie case so required. We are of the opinion that Court ccn in such a situation require the personal presence of the parties. Though the proceedings were ex parte in ttie case like this the Court cannot be a sllent spectator and it should itself endeavour to find out the truth by putting questions to •rfie wilnesses and slicitifsQ uHSwsrs froiTt thsHi/ 11. It is also well settied that if on a dote of hearing the trial Judge is on lewe, fresh notice for the next date of hearing ought to be issued against the defendant. It is re9retted that the trial Judge ignored the basic elements of procedural law and without making any endeavour for securina attendance of the non-applicant before -riie Court and without perusing the record proceeded ex parte a9ainst the oppellant/non-appiicant on 05.02.2002. While recording evidence in a matrimonial matter, the Court is required to sit like a silent spectator ond to pronounce judgment at the ipsj diwt of the husbond (i.e., the soie witness). In Zahira H. Sheikh and smother !/. State of 6ujarat and olfiers 4 Supreme Court Coses 158. it was observed by the Apex Court that the Courts have to take a participatory r-ole in c triat. They are not expected to be tnpe recorders to record whataver is being stated by the witness. TTiey have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record and the necessary materia! to do coiripiete justice 'm the matter is elicited from the witness. In the y- 10 ^^- present case, the trial Jud9e acted in a most depiorable inanner. Had the trial Judge app!ied her mind to the facts of the case and put the following questions to the husband, the fallacy of the ground of desertion would have surfaced; a! c) f) 9) did the husband not initiate proceedings for restitution of conjugal rights for so many years? How was that it was alieged in tiie petition that conjuga! reiationship between the two spouses was not estabiished beyond December 1989 snd in 1+ie report iodged by the father of the aipplicoint/respondent on 12.12.1993 the age of the son was meritioned to be 1 i years. Why did the husband not examine his father Kalaktor Sharmo to prove the alieged misbehaviour by the oppellant/non-applieant's parents? Was it that the husband himself left the wife at his matrimonia! home after iivinq with her there for a number of yenrs? How was that tiie endorsement on the registered notice for 14-09-2001 sent by the Court was COniplst^ly SCFcXtched? How was that there was interpolation in the date put by the post-mcn? did the applicant/husband not examine Sulab Shsrma, the independent witness in whose presence the wifs had refused to go to her matrimoniat home? What was tha reason that despite the fact that the wife was alleged to have refused to iive with the husband from becember, 1989, the notlce WGS sent for the first time orr-14.03.2001? Whether the husband had explained any reosons for the wife's refusal to iive with him? j) Why did the husband not pay process fee for ^?^!'1;";'!":''?'ll'l"^Bi' . .^^•.^^f^I^1"^? 11 issuance of summons by ordinary course despite there beinia on order of the Court on 10.05.2001 and caain on 24.07.20017 Was tiie husband on visiting terms with his wife at her mciternal tiome for number of years which was tiie reason Ihst a son was bom 'm Ihe year June 1992? Why did the husband not adducs any evidence despite |rant of seyeral opportuniTies by 1+ie Court? 13. After eliciting answers from the husband/applicant on the above questions, 1iie Court would have been csble to arrive at a proper conclusion and to do complete justice between 1+ie parties. Tne Court was not powerless to issue summons dir-ectly to the wife for securing her appearance before the Court for reconciliation. It is regretted that the trial Judge did not oppiy her mind to the mandator'y pcoyision of section 23 of the Hindu Marriage Act oaid made no efforts to secure the presence of the wife in order to make nn effor-t for reconciliation between the parties. The trial Judge also faiied to notice 1+iat the licant/respondent had in his statement on oath admiti-ed that out of their conjugal relationship, a son vws born who was aged 10 - 11 years. Therefore, his statement in paragrciph 9 that during the last 10 years the wife had deserted him had cn element of doubt. There is nothing 'm his statement to show that the appellant/non-opplicant refused to/estabiish conjugal relationship with him when he used to visit the house of ttie appelliant where he had willingly gone with his wife to !iye. So far as the statement in paragraph 6 that the non- applicant nnisbehaved with his father Kaiaktor Sharma on 12.12.1993 is concern^d, jt is rendered false because in the copy of the report li^^^'il^^%^^%^^%jti®S^^i®:%^^^l^;^ :l^^^'^^-':'^;;JS:'^;i:::i^::i:.::^;'!''^^l'^^ 12 lodged by Kalaktor Sharma on 12.12.1993 at Police Station Rajim oulpost, no such allegation has been made against the appeilant/non- opplicont. In para9raph 3 of his deposition, atthough it was stated thot the behaviour of tiis father-in-law and mother'-in-law was not good during his stcy for 6-7 months in Nawapara, Rajim, yet no aliegoition had besn levelied a9ainst the appellant/non-applicant. 15. A look at the First Information Report lodged by the appeliant/non-applicant wife at P.5. s5obra Nawapara on 9.6.2003 before fiiing the appeal shows the fallacy of the petition. It reads as A ^S^ TTRT -rN?T ^<;114!'ii 7ffl RclNTl ^ ^T ^ (TiS'-frt t| ^ ?Nt W7 1988 TT ^h? 5Ttft sraf TTRT' f$lci-l'l'< R?c|cpflf sftzp ^rqy -g^ c^ ^rar ^- aft ?IT^ ^ ^R W^f ^T? ^ ^t ^TT t]i?r wN' wif sft^ wg? *d<rd< ?Flf ?TTT?T 'gvfK '^WTT ^t T1FT ^' ^lllA ^ ^HT TFRT^ ^Ft W 4^ ^l^ cR?T ^ ??RT ^TT ^ TIT srpT q5?t ^ tn' ^FT 1992 ^ 'q^"^ d^*l ^?T SSTT f Hjf'ycbl ^TTf -.T^. W^ t (Emphasis supplied by me) ^fT^ ^T^ ^TT ^ gf^ wg? ?nt ^ ^T? '^ra' ^id^ ^ 'ci^ iwi7fe ^n'srr sfk ^s 6|lrtcp\: ^TT qf^ S^ Wg^ g^ W^T cWi^ TTfsRT ^WTRT •F? ^ TTRTc^ ^ •5^ TT^ ^ ^WR ?T? TRT qf^ ^t' grtiw^ ^TT i-TI^ ??^sR ?Flt ^^^t-yi 3ft? ^t? y-id^ll'i ^ 'TTO ^T ^ Ti€i Tite? ^APlcb •g?r W:T Ri'isiciMi cra ^T 'qf^ q^f ^t WST 3ITS ^M '751 (Einphasis supplied by me) TFR ~S^> sTT? :FRT ^fg? SFT<!?? ^ TTf^' ^ 3Wq' ma-T ^ ?r^r ^rar :?R 2001 ^ f^v ^ TRT 1^ wfn ^mf STW? s:s,-' 13 aft? irt5TT ^TEtTO ?5IR 'iOT^ ^RT ^T)\j1l^ ?T 'H^T 'cl^ •^t cTsT ^ iTt^t ^HT ^W cRT ^^W ^?T ^ ?tTTT ?fr WJX Wlf ^ 'FTTt d'isl-1 WT sft? Tff 'EF:gT ?F]f ^ ^ ^] R?7Tr WTT ^iT 3Tq* IS^T ^^t"??t 9? ^t ^ W; ^T? 4.5.2003 ^ WTTBT ETOT?!' cp ^<il!TII ?plf ^ ^t ^ 'e^ft ?TT^t f^TT t ^T? uil^cbl-?! n^ frloft HT qrrra?^ ^) &THT ^ Wl^ !"i<sicii;) sn^ ^ ^ •sro'ft q3^? •^TT ciSTT ^ ^j^ grgw? ^t ^fdjt TT^ t| ^tN ^' It thus appears that after thelr mcrriage in 1988 the respondent/applicant husband had iived wi1+) the appeilant wife at her mcternal home f"om 1992 for ei9ht years i.e. til! the year 2000 nnd had left her- due to non-payment of fts.50,000/- by the father for starting cn auto parts business. Alas, if the trial Court Judge had been vigilant and had secured the presence of the appetlant/non- appiicant before her, truth would have surfaced and the e^c parte decree for dlssotution of marriage would not have been passed. t5ue to the second rnarr'iage by the respondent/ctppliccmt, the married life of the appellant wife has thus been compietely ruined for no fauit of 16. In view of the above facts and circumstances, I am of the considered view that 1+ie trial Court was wholly unjustjfied in recording a finding that the appellant/non-appliccnt hcd deserted the app!icant/respondent. In -riiis view of the matter, the appeal is allowed. The impu9ned e^ parte ^udgmen-t and decree for dissolution of marriage passed by the 5T Additional District Judge, Raipur in Civli Suit Np., 95-A of 2001 is set aside. Parties are directed to appear before the trial Jydge on 9 of 14 ^ 17. A copy of the Judgment be sent to all Judgss of the Famiiy Courts in the State for their guidcmce. — Sd'- Dilip Raosaheb Deshmukh .Judge [(, -04-2007