Civil Revision No. 1709 of 2009. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 1709 of 2009. [O&M] Date of Decision: 20th August, 2009. Amrik Singh Petitioner through Mr. Hari Om Attri, Advocate Versus Sarbjit Kaur Respondent through Mr. Vikas Kumar, Advocate. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. [ORAL) This Revision Petition is directed against the order dated 7.2.2009 passed by the learned Additional District Judge, Faridabad whereby an ex-parte decree of divorce dated 28.07.2008 as well as the order dated 15.05.2008 whereby the respondent – wife was proceeded against ex-parte, have been set aside. [2]. The petitioner was married to the respondent on 14.4.2003. Two daughters were born on 9.5.2004 and 27.8.2007 respectively out of the wedlock. Both the children are in the custody of the respondent – wife. [3]. The petitioner – husband filed a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of his marriage with the respondent. Since at the time of their marriage, the parties had been staying together at Faridabad, where both the children were Civil Revision No. 1709 of 2009. ::-2-:: also born. According to the respondent – wife, soon after the second female child was born, the petitioner – husband left her all by herself due to which her parents had to bring her to Pehowa, District Kurukshetra on 18.9.2007 where her father has been residing since his retirement from the Government service. Though, this fact was known to the petitioner – husband, yet in the divorce petition filed on 21.04.2008, he impleaded the respondent – wife at the address of House No. 155, Post Office wali Gali, Jawahar Colony, NIT, Faridabad, where the respondent – wife could not have been served. The Court ordered substituted mode of service by publishing a notice in the newspaper to serve the respondent and based upon that, the respondent – wife was proceeded ex-parte on 15.05.2008, resulting into an ex-parte decree of divorce passed on 28.07.2008. The respondent – wife had meanwhile moved an application before the Police Authorities [Women Cell] against the mal-treatment meted out to her and their minor daughters and during the course of investigation of that complaint when the petitioner took a stand that their marriage has already been dissolved, that she came to know about the ex-parte decree of divorce. [4] She immediately moved an application under Order 9 Rule 13 CPC to set aside the ex-parte orders dated 19.05.2008 and 28.7.2008, referred to above. Her application has been allowed by the learned Additional District Judge, Faridabad vide the impugned order dated 7.2.2009 after observing as follows:- “It is the categorical stand of the applicant that she never stayed at Faridabad and she never lived at the address given in the petition and this fact is supported from the Civil Revision No. 1709 of 2009. ::-3-:: conduct of the petitioner as he mentioned the address of petitioner Sarbjit Kaur in the main petition as 155, Post Office Wali Gali, Jawahar Colony, NIT, Faridabad and landlord of this house i.e. Karnail Singh has deposed in his affidavit that the applicant never lived in this house. The petitioner in his reply has submitted that he was appending the affidavit of landlord but no affidavit of landlord is there. Rather, affidavit of landlord has been furnished by the applicant which goes against the plea of the petitioner. 7. Even otherwise, along with summons in ordinary process, the summons were also sent through registered cover and on the summons it was reported that no such person like Sarbjit Kaur was residing at house No.155 whereas on the registered cover it is reported that respondent refused to receive the summons and this report appears to have been procured by the petitioner in connivance with the official of post office. Even otherwise, when a person was not residing at the given address then how a report can be made that person refused to receive the summons.” [5]. The trial Court further observed that even after procuring report from the postal authorities at Faridabad, the petitioner got another notice issued to the respondent-wife at an 'incomplete address' of Pehowa as was reported by the postal authorities on 18.3.2008. It shows that the petitioner knew that the respondent had been residing at Pehowa yet he made no effort to serve her at the correct address, rather he went for substituted service through a news paper with the least circulation in Pehowa. The learned Additional District Judge has also attributed motives to the petitioner. Civil Revision No. 1709 of 2009. ::-4-:: [6]. Aggrieved, the petitioner – husband has approached this Court. [7]. Notice of motion was issued and in response thereto, counsel for the parties have been heard. The ex-parte order, the divorce petition and the application for setting aside the ex-parte proceedings have also been referred to and perused during the course of hearing. [8]. It transpires that the respondent – wife was impleaded by the petitioner at the address “155, Post Office Wali Gali, Jawahar Colony, NIT, Faridabad”, knowing fully well that she was no longer residing at Faridabad and had already gone to Pehowa, District Kurukshetra along with her parents after having been dejected by the petitioner. No effort was made to affect service on the respondent – wife at her Pehowa address though it was well known to the petitioner-husband. In these circumstances, the learned Additional District Judge has rightly observed that the respondent – wife was never served in accordance with law and the reports of service were procured through fraudulent means. The depositions made by the residents of the locality including the landlord of the house No.155 at Faridabad, produced by the respondent – wife as a witness, have been rightly relied upon by the learned Additional District Judge in this regard. [9]. The petitioner – husband, prima facie, appears to have moved the divorce petition with a calculated move to secure a decree of divorce without giving any chance to the respondent – wife to defend himself. Civil Revision No. 1709 of 2009. ::-5-:: [10]. It is informed during the course of hearing that the petitioner – husband is working as a Sub-Inspector in the Central Reserve Police Force ['CRPF'] and has un-disputably paid not even a penny to his wife or the minor daughters towards maintenance. The manner in which he obtained the decree of divorce strengthens the allegations made on behalf of the respondent – wife that she has been deserted and thrown away from the matrimonial home immediately after she gave birth to the second female child. The petitioner's plea that the respondent – wife was impleaded on Faridabad's address as the same was mentioned by her father in a complaint to the Police Authorities, is patently false to his knowledge and misleading. [11]. For the reasons afore-stated, I do not find any merit in this revision petition, which is accordingly dismissed with costs of Rs.25,000/-, out of which Rs.10,000/- are towards litigation expenses of this case and the balance Rs.15,000/- to be adjusted towards the arrears of interim maintenance being granted to the respondent-wife hereinafter. [12]. Counsel for the wife passionately submits that the respondent-wife and her two minor daughters have no means to survive and are at the mercy of her father who himself depends upon a meager amount of pension being received as a Class III retired employee. He prays that during the pendency of the divorce petition and till some order is passed by the learned Additional District Judge, this court may, suo-motu, grant some interim maintenance to enable the respondent-wife to feed herself and her daughters and defend Civil Revision No. 1709 of 2009. ::-6-:: herself in the pending case as no financial assistance whatsoever has been provided by the petitioner for the last over two years, who is otherwise well placed and has been serving as a Sub-Inspector in the CRPF. [13]. Ordinarily and after dismissal of this revision petition, this Court would have been reluctant to pass any order on an issue which is not directly involved in these proceedings. However, will it not amount to failure in its duty if, this Court, while exercising its powers under Article 227 of the Constitution of India, over-looks the plight of the respondent – wife and her two minor daughters? - is yet another question staring at the face of the Court. [14]. Recognizing the suo-moto powers of a revisional Court, the Hon'ble Supreme Court in Swastik Oil Mills Ltd. v H.B.Munshi, Deputy Commissioner of Sales Tax, Bombay, AIR 1968 SC, 843 ruled that the Revisional Court could examine the correctness, legality and propriety of the order and pass such suitable orders as it may think fit in the circumstances of a particular case before it. Suo-moto power of the Revisional Court to recall fraudulent acts has been upheld in A.V.Papayya Sastry & Ors. V Government of A.P.& Ors., 2007[4] SCC, 221. Similarly, in Nadir Khan v The State [Delhi Administration], 1975[2] SCC, 406 the powers of the High Court under Article 227 of the Constitution read with Section 482 Cr.P.C. to suo-moto enhance the sentence already awarded to an accused has been endorsed. [15]. There is indeed no doubt that the respondent – wife can apply for maintenance pendente-lite during the pendency of the Civil Revision No. 1709 of 2009. ::-7-:: divorce petition before the learned trial Court, which may pass appropriate orders after following the prescribed procedure. The pitiable condition in which the petitioner – wife is currently sustaining may, however, not enable her to near legal expenses or travel time and again from Pehowa to Faridabad to defend herself, especially when her younger daughter is hardly two years old. Keeping in view these mitigating circumstances, and the hardship being faced by the respondent, I am inclined to grant her interim maintenance to the extent of 1/3rd of the total carry home salary of the petitioner- husband or Rs.7000/- per month, whichever is lesser. The aforesaid interim maintenance is purely of tentative and adhoc nature till the exact amount thereof is determined by the learned trial Court. The excess or deficient payment shall be adjustable/recoverable in terms of the order to be passed by the trial Court. The amount of Rs.15,000/- awarded here-in-above, shall be treated as advance payment and be adjusted against the arrears of interim maintenance as may be found recoverable. The petitioner–husband, however, is directed to pay the amount of Rs.25,000/- as directed vide para No. 11 above, to the respondent – wife on the next date of hearing before the trial Court. It is made clear that in case the petitioner – husband fails to pay the said amount, the trial Court shall issue appropriate directions to his appointing authority in the CRPF for deducting the same directly and depositing in the Court for payment to the respondent – wife, as early as possible. [16]. Disposed of. Dasti. August 20, 2009. ( SURYA KANT ) dinesh JUDGE