FAO No. 629 of 1998 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 629 of 1998 (O&M) Date of decision: May 03,2011 Smt. Parmod .. Appellant v. Shri Parveen Kumar .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. B. R. Mahajan, Advocate for the appellant. Mr. Subhash Ahuja, Advocate for the respondent. ... Rajesh Bindal J. Challenge in the present appeal filed by the wife before this court is to the order dated 14.2.1998, whereby the application filed by the appellant-wife under Order 9 Rule 13 read with Section 151 CPC for setting aside of ex-parte divorce decree dated 12.4.1997, was dismissed. Briefly, the facts are that marriage of the parties was solemnised on 2.5.1993. They lived together till 15.3.1996 when the wife was left by the husband in her parental home when she was in her family way. A child was born on 24.11.1996. On 17.4.1996, the husband filed a petition under Section 9 of the Hindu Marriage Act, 1955 (for short, `the Act') seeking restitution of conjugal rights. However, during the pendency of the aforesaid petition, on 17.7.1996, the husband filed a petition for divorce. In the divorce proceedings before the birth of the child on 24.11.1996, the parties appeared in person and the matter was settled. However, subsequently on account of non-appearance of the wife, she was directed to be proceeded against ex-parte and the decree of divorce FAO No. 629 of 1998 [ 2] was passed on 12.4.1997. This fact was disclosed by the husband to the wife on 7.5.1997 and immediately an application for setting aside the same was filed on 10.5.1997. The application having been dismissed on 14.2.1998, the wife is in appeal before this court. Learned counsel for the appellant submitted that it is a case where the wife has been cheated. There were no major differences as such between the parties. The husband had himself left the wife in her parental home on 15.3.1996 as she had conceived and this being her first pregnancy. Immediately after leaving the wife in her parental home, a petition for restitution of conjugal rights was filed on 17.4.1996, but no notice was served on the appellant. The aforesaid petition was filed through Ms. Raj Gund Advocate. During the pendency of the aforesaid petition for restitution of conjugal rights, the husband filed the divorce petition on 17.7.1996. The factum of pendency of petition for restitution of conjugal rights was not disclosed in the divorce petition. Hindu Marriage (Punjab) Rules, 1956 framed by this court provide that fact regarding any previous proceedings with regard to marriage between the parties, if so, the result of those proceedings is one of the fact which is required to be mentioned in the petition. The petition for restitution of conjugal rights was withdrawn by the husband only on 16.9.1996. Further, the submission was that on 15.10.1996, both the parties appeared in person in court. The dispute was settled and it was agreed by the parties that after the delivery of the child, the appellant will join the respondent. Thereafter on account of delivery of the child on 24.11.1996, the wife could not appear in person in court. Even otherwise, once the dispute had been settled and it was stated that both of them are together, the divorce petition was to be dismissed. However, on 25.2.1997, the learned court below directed for issuance of notice to the wife. Even though as per the court record, no notice was ever issued but still on the next date of hearing, the wife was directed to be proceeded against ex-parte and after recording the ex-parte evidence, the decree of divorce was passed on 12.4.1997. This fact was disclosed by the husband FAO No. 629 of 1998 [ 3] to the wife on 7.5.1997. As it was a shock to her, immediately application was filed for setting aside of the ex-parte decree on 10.5.1997. The learned court below has committed patent illegality in accepting the contention of the husband while dismissing the application that in the meantime, the husband had got re-married after the statutory period of appeal and further that the wife had failed to appear in court. The appellant-wife in the present case has been cheated as after the settlement of dispute in court in the presence of both the parties, the husband had informed the wife that she need not go to the court now as he will get the divorce petition disposed of. There was breach of trust. Though the decree of divorce was passed on 12.4.1997, it was claimed by the husband that he got re-married on 15.5.1997, just after one month without ascertaining the fact whether any appeal or application for setting aside of ex-parte decree has been filed by the wife or not. The application had, in fact, been filed on 10.5.1997 before the husband got re-married. The manner in which the court below had proceeded ex-parte against the appellant without seeing the previous orders passed regarding summoning of the appellant-wife and without ensuring that the notice had in fact been issued to her, is totally casual. Had the previous orders passed by the court below regarding conciliation and the settlement of the dispute by the parties been considered, the court would not have proceeded ex-parte against the wife and granted decree of divorce. Even if the wife had been proceeded against ex-parte, still the court below was required to independently assess the evidence, as the material on record did not justify passing of decree of divorce. The prayer is for setting aside of the impugned order dismissing the application for setting aside the ex- parte decree and permitting the appellant to contest the claim on merits. On the other hand, learned counsel for the respondent submitted that merely because the learned court below had directed for issuance of notice to the wife and the same had not been issued, it will not have any bearing on the case. It cannot be disputed that the wife had the knowledge of pendency of divorce petition as she herself had FAO No. 629 of 1998 [ 4] appeared in person. She was even represented by a counsel. Once the counsel had failed to put in appearance, without even directing for issuance of fresh notice, the court could very well proceed against the wife ex-parte. The application had been filed with wrong averments that the parties had been living together till 7.5.1997 as prior thereto, FIR had been lodged by the wife against the husband and his mother for kidnapping the child, which itself shows the kind of relations the parties had. It has come on record that the parties had been summoned by the police. The over-all conduct of the parties was required to be seen, which did not justify re-calling of the ex-parte decree passed in favour of the husband. In response to the contentions raised by learned counsel for the respondent, learned counsel for the appellant submitted that even after delivery of the child, the husband had been regularly visiting the parental home of the wife where she along with the infant was living. The complaint had to be lodged with the police for the reason that the husband had taken the child with him on the pretext of getting his grand mother see the infant, but he did not bring him back. It has come on record that it was only in the presence of the police that custody of the child was returned back to the wife. Had the relations been not cordial when the husband had taken the child, no one would have permitted him to take the child by force. Heard learned counsel for the parties and perused the relevant referred record. The undisputed facts on record are that after the marriage on 2.5.1993, the parties lived together till 15.3.1996 when the wife was left in her parental home where she delivered a child on 24.11.1996. On 17.4.1996, the husband filed a petition for restitution of conjugal rights in which notice was not served on the wife. During the pendency thereof and without disclosing the factum of pendency of the aforesaid petition in the court, the husband filed a divorce petition on 17.7.1996. The counsel, who had filed the petition for restitution of conjugal rights and the divorce FAO No. 629 of 1998 [ 5] petition was the same. The petition for restitution of conjugal rights was withdrawn on 16.9.1996. The proceedings which had taken place before the court in the divorce petition are quite relevant. The orders passed therein on some of the relevant dates are extracted below: Order dated 15.10.1996 “Present: Counsel for the parties. Parties present in person. Effort has been made to bring about reconciliation between the parties and it appears that the parties can live together in a peaceful manner. Their differences are of petty nature and the same are likely to be patched up. It has been proposed that the petitioner will go to the house of the respondent and bring her in a respectable manner in a car, as her condition on account of pregnancy does not allow movement by ordinary transport. The respondent will be living in the house of the petitioner for a few hours in the company of her aunt, Smt. Santosh, who is present today. The petitioner will, thereafter, take the respondent and her aunt to their house where the respondent will continue to live till she delivers the child, sometime in December or in the end of November. The petitioner will continue to visit the respondent from time to time and take care. It has been agreed by the parties that after the delivery of the child, the respondent will join the petitioner. Further progress will be reported by the parties on the next date. The petitioner will appear in court on 17.10.96 and the respondent need not come on that day. Smt. Santosh, aunt of the respondent may however, come and report about the progress made meanwhile. Put up on 17.10.1996.” FAO No. 629 of 1998 [ 6] Order dated 17.10.1996 “Present: Counsel for the parties. Petitioner in person. The petitioner says that he had gone to bring the respondent and the respondent was brought to his house. He further says that the respondent stayed in his house for one hour and thereafter he had taken her back to the house of her mother. Put up on 7.12.1996.” Order dated 7.12.1996 “Present: Petitioner in person. The petitioner says that relations between him and his wife have become cordial and his wife has given birth to a child and she will be able to attend the court sometimes in the month of January, 1997. Put up for appearance of the parties on 10.1.97.” Order dated 10.1.1997 “Present: Counsel for the parties. Parties have not appeared today. Counsel for the parties shall produce the parties now on 18.1.1997.” Order dated 18.1.1997 “Present: Counsel for the parties. Parties are not present today. Both the counsel shall arrange the presence of the parties on the next date positively so that further proceedings may be taken. Put up on 20.2.97.” Order dated 20.2.1997 “Present: Counsel for the parties. Learned District Judge is on leave today. To come up on 25.2.1997 for proper orders.” Order dated 25.2.1997 “Present: Petitioner in person. The respondent has not come present nor her counsel. Issue notice to both the counsel for the parties to appear in FAO No. 629 of 1998 [ 7] court and also produce both the parties on 19.3.1997.” Order dated 19.3.1997 “Present: Petitioner with counsel. None for the respondent. Earlier also the case was called many times before lunch, when neither the respondent nor her counsel appeared. `It is now 3 p.m. The respondent is absent. Her counsel has also not appeared. Accordingly, the respondent is proceeded against ex parte. For exparte evidence of the petitioner, to come up on 12.4.1997.” A perusal of order dated 15.10.1996 shows that in the presence of both the parties, the dispute was settled. Thereafter the child was born on 24.11.1996. Since the parties had amicably settled, the husband was only to get the divorce petition disposed of, but still on the one hand he was keeping relations with the wife, whereas on the other hand, he tried to proceed with the divorce petition. On 25.2.1997, the learned court below noticing the stand of the husband directed issuance of notice to the wife, as neither she had appeared nor her counsel. A perusal of the order on the next date shows that notice in fact, was never issued. Still noticing non-appearance of the wife or her counsel, she was proceeded against ex-parte. The learned court below firstly committed error at this stage. It had failed to take notice of the earlier proceedings, namely, settlement of the dispute between the parties and subsequently on account of stand taken by the husband on 25.2.1997, issuance of fresh notice to the wife. Without ensuring that the notice, in fact, had been issued and served, the court with the change of Presiding Officer directed the wife to be proceeded against ex-parte. In matrimonial cases, the courts should not proceed hurriedly, especially when either of the parties is to be proceeded against ex-parte. The case in hand is not of the kind where despite numerous efforts the wife had not been served or had not appeared after due service or abandoned the proceedings in between. Rather, in the present case she FAO No. 629 of 1998 [ 8] had appeared in the court and was even represented by the counsel. Once the husband had sought to take a stand of settlement, later on minimum the court was required to do was to serve a notice on the wife and/or her counsel. The earlier stand of the husband before the court below in the presence of both the parties was that the dispute between them has been settled. Later on, it was only the husband who had taken the stand that there was dispute. This fact was required to be ascertained by the court before proceeding further in the matter. The stand taken by the husband that after passing of the decree of divorce on 12.4.1997, he in fact had got re-married on 15.5.1997 and on account of that, the application for setting aside of the ex-parte decree had been rendered infructuous is totally misconceived. The limitation has been provided in the Act for filing of appeal or any other application such as in the present case, it was application for setting aside of ex-parte decree. Even if the appeal or application had been filed within limitation, it always takes time for service of notice thereof on the respondent therein. In fact, the manner in which the husband has proceeded apparently shows that his effort was to get an ex-parte decree so that he could re-marry immediately after expiry of 30 days. A Division Bench of this court in Jasbir Kaur v. Kuljit Singh, 2008(2) RCR (Civil) 929 had answered the question, namely, “whether performance of a marriage after filing of appeal, an unlawful act in terms of Section 15 of the Hindu Marriage Act, 1955, amounts to wilful disobedience to the “other process of the court” disclosing a civil contempt within the meaning of Section 2(b) of the Act” and opined that “according to Section 15 of the Act, a party to the dissolved marriage could marry again if period of filing an appeal has expired or the appeal has been dismissed. It necessarily implies that the decree holder has to make inquiries that no appeal has been filed within the period of limitation or that the appeal has been dismissed. Such a spouse cannot sit at home and wait the summons to come because service of summons may not necessarily be effected on the winning spouse within the period of FAO No. 629 of 1998 [ 9] limitation.” For the reasons mentioned above, in my considered opinion, the order passed by the learned court below dismissing the application filed by the appellant-wife for setting aside of ex-parte decree deserves to be set aside. The ex-parte proceedings against the appellant are set aside. The parties are directed to appear before District Judge, Amritsar on May 27, 2011 for further proceedings in the divorce petition. The appeal stands disposed of in the manner indicated above. (Rajesh Bindal) Judge May 03,2011. mk