FAO No.2285 of 2007 -1 - IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No.2285 of 2007 Date of decision : 16.4..2009 Babita Laul ..Appellant. Vs. Vijay Laul ..Respondent. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.A.K.Khungar, Advocate for the appellant. Mr.Manjit Singh, Advocate for the respondent. RAKESH KUMAR JAIN, J. Challenge in this appeal is to the order passed by Additional District Judge, Chandigarh dismissing the application filed by appellant under Order 9 Rule 13 of Code of Civil Procedure (for short `CPC') for setting aside ex parte order/decree dated 21.12.2002 passed by Principal Judge, Family Court, Kanpur Nagar. Briefly stated the facts of the case are that plaintiff and respondent got married on 10.10.1991 at Chandigarh and were blessed with a daughter born in the month of August 1992. The respondent filed a petition for divorce dated 26.7.2001 in the Court of Principal Judge, Family Court, Kanpur Nagar bearing No.551 of 2001 titled as Vijay Kumar Laul Vs. Babita, inter alia, on the ground that the appellant had deserted the respondent in the year 1994. Notice of the divorce petition was issued by FAO No.2285 of 2007 -2 - the Family Court of Kanpur through registered post and was also served by way of substituted service of publication of notice in the newspaper “Amar Ujala” published from Jalandhar on 28.3.2002 but the appellant failed to appear before the Family Court and was thus, proceeded against ex parte. After recording ex parte evidence, the Family court at Kanpur vide its judgment dated 21.12.2002 allowed ex parte divorce to the respondent and marriage between the appellant and the respondent was dissolved. On 27.5.2003, the appellant filed an application under Order 9 Rule 13 of CPC before the Family Court at Kanpur Nagar in which she alleged that she had never received any notice from any Court regarding pendency of the divorce petition filed by respondent nor was in the knowledge of pendency of any such divorce proceedings. She also alleged that she came to know that the respondent was going to contract second marriage which led to filing of a complaint to the SSP Kanpur Nagar and a suit for permanent injunction at Chandigarh in the Court of Mr.Pushvinder Singh, Civil Judge (Jr.Divn.), Chandigarh restraining the respondent from contracting second marriage. In this suit, dasti summons were issued on 28.5.2003. She also alleged that on 8.5.2003 her father along with counsel went to Kanpur Nagar to execute the summons where he came to know that the respondent had taken a decree of divorce. The application was contested by the respondent in which preliminary objection was taken that the application is barred by time, hence, it is not maintainable and the respondent has already married with one Sonu Khanna, daughter of late A.P.Khanna as per Hindu law and got it registered at the office of Sub Registrar, Hindu Marriage at Kanpur, therefore, application under Order 9 Rule 13 CPC has become infructuous. FAO No.2285 of 2007 -3 - On merits, it was alleged that the appellant had knowledge of the proceedings at Kanpur Nagar as many registered notices were issued by the Court to her and lastly she was served by way of publication but in spite of that she failed to appear in the Court. Consequently, she was proceeded against ex parte. During the pendency of application filed under Order 9 Rule 13 CPC before the Court, the appellant filed a petition under Section 25 of Code of Civil Procedure before the Apex Court for transfer of the application filed under Order 9 Rule 13 CPC to Chandigarh which was allowed on 16.2.2004 and the application along with record of the divorce petition was transferred to the Court at Chandigarh. On the pleadings of the parties, following issues were framed on 28.9.2005: (i)Whether the judgment and decree dated 19.4.2000 passed by the Principal Judge, Family Court, Kanpur Nagar is illegal and is liable to be set aside? OPP. (ii)Whether the application dated 27.5.2003 filed by applicant Babita Laul is within time ? OPP. (iii)Relief. In order to substantiate her claim, appellant Babita examined herself as PW1 and her father M.P.Bharara as PW2 and relied upon documents Ex.P1 letter of appointment, Ex.P2 copy of the summon, Ex.P3 copy of complaint filed with SSP Kanpur, Ex.P4 receipt and Rail Ticket, Ex.P5 complaint filed by the respondent with Deputy Commissioner, Ex.P6 Railway tickets and Ex.P7 to Ex.P9 hotel bills. As against this, respondent Vijay Laul examined himself as RW1 and tendered a letter written by the FAO No.2285 of 2007 -4 - appellant to her mother as Ex.R1 and telegram received by him from the appellant on 28.4.2003 as Ex.R2. The learned trial Court discussed issues No.1 and 2 together and found that the respondent had given address of the appellant in divorce petition as resident of H.No.1268, Sector 22-B, Chandigarh and accordingly notice of the petition was issued to her on the same address which was received back unserved with the report that appellant is not available at the given address. The appellant alleged that in the year 2001-2002, she was not residing at the address given by the respondent as she had already shifted to some other place but she admitted that she used to reside in the said house and had never informed the respondent about her new address. It was also found by the Court below that it is admitted case of the appellant that after the year 1994, she never communicated with the respondent and it was observed as to how the respondent will come to know about the new address of the appellant, which was to be explained by the appellant. The appellant also admitted to have never received written communication from the respondent after the year 1994, therefore, it was concluded that in the year 2001, when the respondent filed divorce petition against the appellant she was residing in Sector 22-B, Chandigarh at the address given in the divorce petition and notice of the divorce petition was sent to her on that address without informing her new address to the respondent. It was also found that if the appellant could not be served in ordinary process, she was served through substituted service of publication in a newspaper “Amar Ujala” published from Jalandhar but still the appellant did not appear before the Family Court. The learned Court below also found that the appellant had sufficient notice and information FAO No.2285 of 2007 -5 - about the second marriage of the respondent after passing of ex parte decree of divorce, which is admitted by the appellant herself in her cross examination as she stated that in the month of April 2003, she came to know from somebody that the respondent is going to perform second marriage and that she filed a suit for injunction at Chandigarh for restraining the defendant from contracting second marriage. The appellant had failed to mention date of knowledge of the said fact in her affidavit but had admitted that she was knowing that the respondent is going to perform second marriage on 27.4.2003. In the light of this fact, the learned Court below came to a conclusion that it cannot be believed that though the appellant had the knowledge of second marriage yet she did not know about the exparte decree of divorce. It was also observed that the appellant has intentionally not produced the copy of plaint of suit for injunction. She had otherwise, placed on record copy of complaint sent to Sr. Superintendent of Police, Kanpur Nagar in which she admitted that the respondent was going to contract second marriage on 27.4.2003. The Court below observed that if she had the knowledge of this fact which really materialised on the said date she should have gone to stop the respondent from performing the second marriage but she failed to take such step alleging that she had no knowledge about the decree of divorce. The learned Court below also found that the story coined by the appellant that she came to know about the impugned exparte decree on 28.5.2003 through her father when he visited Kanpur, is unbelievable. The learned Court below also observed that the application filed under Order 9 Rule 13 CPC is time barred as the appellant had the knowledge of ex parte decree and the case set up by her that she came to FAO No.2285 of 2007 -6 - know on 8.5.2003, is without any basis. Secondly, the ex parte decree was passed on 21.12.2002 and the respondent had remarried on 27.4.2003 whereas under Section 15 of the Hindu Marriage Act if the period of limitation expires and the decree of divorce is not challenged then party to the marriage having decree of divorce has a right to get remarried and there is nothing unlawful. In the light of this fact, the learned Court below observed that the appellant had contracted second marriage before service of injunction notice and thus, relied upon decision of Allahabad High Court in the case of S.P.Srivastava Vs. Smt.Prem Lata Srivastava AIR 1980 Allahabad 336 in which it was held that the application under Order 9 Rule 13 CPC has become infructuous and was dismissed as such. In this case, efforts have been made by this Court for amicable settlement between the parties on the ground that respondent has contracted second marriage in the year 2003 and have two children out of that marriage. The matter was adjourned time and again to explore the possibility of a settlement as suggested by counsel for the parties but ultimately nothing could materialise, therefore, arguments were heard on merits. Learned counsel for the appellant has vehemently contended that the appellant has been illegally proceeded against ex parte by the Family Court in spite of the fact that she was never served. It is alleged that no summon was served upon her, therefore, she has been illegally proceeded against ex parte. In this regard, it is submitted that she came to know about the decree of divorce through her father on 8.5.2003. Thereafter, she had filed the application under Order 9 Rule 13 CPC on 27.5.2003. It is further FAO No.2285 of 2007 -7 - contended that since knowledge of the ex parte decree was acquired on 8.5.2003 and the application was filed on 27.5.2003, therefore, it was within limitation and even if the respondent has got remarried and is having two children from the second wife, the application under Order 9 Rule 13 CPC has not become infructuous. Learned counsel for the respondent has contended that appellant was not only served through registered notice on the address at which she was residing when she had deserted him and had no other address with him but also she was served through substituted service of publication in the newspaper having circulation in the area of Punjab, Haryana and Chandigarh, therefore, it is presumed that she has been served and when she did not appear in Court in spite of publication in the newspaper, ex parte proceedings were carried out and after the ex parte decree, which was granted by the Family Court on 21.12.2002, the respondent had awaited the action from the appellant for a period of about 5 months before getting remarried on 27.4.2003 and got the marriage registered with Sub Registrar's Office, Hindu Marriage Registrar, U.P. at Kanpur on 10.7.2003. It was also argued that the appellant had never communicated after the year 1994 in order to meet the respondent, therefore, he only knew about her address, which was provided in the divorce petition and the appellant had knowledge about the decree of divorce as she had filed the complaint about remarriage of the respondent to Sr.Superintendent of Police (Ex.P3) and a suit for permanent injunction at Chandigarh, therefore, the application for setting aside the ex parte decree has become time barred as limitation cannot be counted from 8.5.2003. It is also contended that from second wife, the FAO No.2285 of 2007 -8 - respondent has two children and in view of Section 15 of Hindu Marriage Act, 1955 the application under Order 9 Rule 13 CPC has become infructuous. Counsel for the respondent relied upon a decision of Rajasthan High Court in Surendra Kumar Vs. Kiran Devi AIR 1997 Rajasthan 63. I have heard learned counsel for the parties and have perused the record with their assistance. Certain facts are undisputed, namely, marriage between the appellant and the respondent and their having a child out of the said wedlock, divorce petition filed at Kanpur Nagar by the respondent in which last address of the appellant was given as House No.1268, Sector 22-B, Chandigarh. The Family Court had served registered AD notices upon the appellant at the given address but those were received unserved. The appellant was then served by way of substituted service through publication in the newspaper and to which she did not react and ultimately, ex parte divorce decree was granted. The question in this case is whether the appellant had the knowledge of divorce proceedings and whether the application under Order 9 Rule 13 CPC has become infructuous in view of remarriage of the respondent. As is apparent from the record, the appellant resided at House No.1268, Sector 22-B, Chandigarh when she deserted the respondent, there was no communication between them from either side after the year 1994, the respondent had given same address, which was last given to him but on that address she could not be served. However, it was found by the Court below that the Family Court had served the appellant by way of publication FAO No.2285 of 2007 -9 - in the newspaper before proceeding against her ex parte. It has also come on record that she admitted that in the month of April 2003 she had the knowledge that the respondent is going to contract second marriage for which he filed a suit for injunction at Chandigarh but she deliberately did not disclose the date of knowledge of this fact. This fact is sufficient to prove that the appellant had the knowledge about the decree of divorce as well. But still she did not file any application and had rather concocted a ground that she came to know about the second marriage on 8.5.2003 when her father visited Kanpur Nagar. Thus, in my view, the findings recorded by the Court below about knowledge of the appellant regarding divorce proceedings and the decree is based upon evidence, do not call for any interference. Even otherwise, the second question which is more important in this case, is as to whether the application under Order 9 Rule 13 CPC has become infructuous in view of the fact that respondent had performed second marriage. In the case of S.P.Srivastava Vs. Smt.Prem Lata Srivastava (supra), the respondent filed a suit for divorce and obtained ex parte decree on 2.6.1973. The wife filed an application under Order 9 Rule 13 CPC on 15.4.1976 on the ground that she was never served with summons and she came to know about the decree only on 15.4.1976. In the meantime, respondent contracted second marriage on 14.4.1976. The trial Court allowed the application and set aside ex parte decree. It was further held by the High Court that burden was heavy upon the wife to prove that she was never served and got no knowledge about the suit or proceedings on a particular date. The burden is still more heavy when the application is FAO No.2285 of 2007 -10 - made after the period of limitation provided for moving the application, preventing her from making application in time. It was also held that the remarriage took place after the expiry of limitation of filing an appeal and the Court should also look into the interest of third party i.e. second wife and should take notice of the subsequent events. It was further held that if the party had constructive notice of the decree then they need not to be served at all. Similarly in the case of Surendra Kumar Vs. Kiran Devi (supra), the facts were that husband filed a petition for annulment of marriage on 5.9.1992 on the ground of cruelty. Service of notice was effected upon mother of the wife but nobody had put in appearance, therefore, ex parte decree of divorce was passed by the trial Court in favour of the petitioner on 11.8.1992. An application under Order 9 Rule 13 CPC was filed. In this case also the husband had contracted second marriage after passing of the decree by complying Section 15 of Hindu Marriage Act. The Rajasthan High Court after relying upon the decision rendered in the cases of Harjeet Singh Vs. Smt.Guddi (1987) 1 Rajasthan Law Reporter 520 and Smt.Shimla Devi Vs. Kiran Kumar (1994) 3 WLC 519 (Raj) and a Supreme Court judgment in the case of Pasupuleti Venkateswarlu Vs. The Motor & General Traders AIR 1975 SC 1409 held that in view of remarriage of the respondent-husband after the expiry of the period of limitation, application under Order 9 Rule 13 CPC has become infructuous. It is pertinent to mention that Section 28 (4) provides that an appeal under this Section shall be preferred within a period of 30 days from the date of passing of the decree. Admittedly, the marriage was solemnised by the respondent after expiry of period of limitation, therefore, the marriage is not FAO No.2285 of 2007 -11 - unlawful in view of Section 15 of the Act in terms of the judgment of Allahabad High Court in S.P.Srivastava Vs. Smt.Prem Lata Srivastava (supra) and Rajasthan High Court in Surendra Kumar Vs. Kiran Devi (supra), therefore, the application for setting aside ex parte has become infructuous. In view of the above discussion, I do not find any merit in the present appeal and the same is hereby dismissed without any order as to costs. (RAKESH KUMAR JAIN) 16.4.2009 JUDGE Meenu