Smt. Ranjana Desai, J.

1. Rule. Respondents waive service. By consent of the parties, taken up for hearing forthwith.

2. The appellant is original petitioner 2husband and the respondent is original petitioner 1wife in M.J. Petition No.F619 of 2007. For convenience, we shall refer to the appellant as “the husband” and the respondent as “the wife”. They filed the aforesaid petition for divorce by mutual consent under section 13B of the Hindu Marriage Act, 1955 (for short, “the said Act”) in the Family Court at Bandra, Mumbai.

3. The case of the husband and the wife, as stated in the petition, is that they are Hindus and are governed by the provisions of the said Act. They got married on 5/3/1993 at Mumbai as per Hindu Vedic rites. The said marriage was registered with the Registrar of Marriages. The couple has two sons viz. Veer and Shikhar born on 1/2/1995 and 3/4/1997 respectively. After marriage, they resided together in Flat No.601, 2nd floor, Dinath Court, Sir Pochkhanwala Road, Worli, Mumbai. Irreconcilable differences arose between the two on account of temperamental differences. Incompatibility with each other made it difficult for them to coexist. They stopped cohabiting as husband and wife from January, 2005. Despite innumerable efforts made by them and their friends, they could not sort out their problems. They, therefore, decided to end their marriage by a decree of divorce by mutual consent under section 13B of the said Act. On these facts, on 18/5/2007, a joint petition for divorce by mutual consent was filed. To the petition, at ExB, they annexed consent terms, which were to form part of the decree.

4. Consent terms stated that the wife will have custody of the two children. The husband was to have access to the children as stated in the consent terms. The husband was to have unhindered free access to the children keeping in mind their schedule and convenience. The husband was entitled to avail weekend access from Friday evening 6.00 p.m. to Sunday evening 6.00 p.m. whenever he visited the children. The vacations were to be shared equally by the husband and the wife. The husband was to avail first half of the vacation access and he was entitled to take the children abroad during the period of the said access. Certain admitted dates and events will have to be stated at this stage. The consent petition was registered on 19/5/2007. The copy of the Roznama which is filed in the court indicates that on 14/6/2007, both the parties were absent. The court was on leave. The petition was adjourned for counselling. On 23/8/2006, both the parties were absent. The petition was adjourned. Admittedly, no counselling was done in this case. On 19/11/2007, the husband was absent. The wife filed an application seeking issuance of summons. The Family Court directed issuance of summons upon payment of process as prayed. On 23/11/2007, learned advocate Smt. Deshmukh, who had filed the petition on behalf of both the parties, addressed a letter to the husband enclosing the summons of the Family Court and informing the husband that the matter is posted before 6th Family Court on 1/12/2007. On 1/12/2007, Santosh Jadhav, clerk of Smt. Deshmukh, learned advocate, filed a service affidavit stating that he had visited the residence of the husband situate at 2nd floor, Dinath Court, Sir Pochkhanwala Road, Worli, on 26/11/2007 at 8.20 a.m. when servant of the husband told him that he was out of town since past two days and that he would be coming back to Mumbai after 10 to 12 days. Santosh Jadhav further stated in the affidavit that he told the husband to attend the court on 1/12/2007 as that was the court date. On 1/12/2007, the husband remained absent. The wife filed application seeking order of substituted mode of service to paste the summons on the doo