The main legal point established in the judgment is that the permission for substituted service by way of publication in a widely distributed English newspaper was justified, and the ground for setting aside the ex parte decree was not sustainable.

JUDGMENT :

L. Mohapatra, J. - This writ application is directed against the order dated 2.9.2008 passed by the learned Judge, Family Court, Rourkela in Misc. Case No. 5 of 2008 filed under Order 9, Rule 13 of the Code of CPC ( in short 'Code of Civil Procedure') for setting aside the ex parte decree of divorce.

2. The Petitioner and the opposite party got married on 18.2.1991 as per Hindu rites and customs at Kolkata. Both of them were blessed with two children, a son namely, Siddhant in the year 1994 and a daughter namely, Shraddha in the year 1999. There were differences between both of them during this period and subsequently the relationship became such that they had to remain away from each other. The Petitioner thereafter filed Civil Proceeding No. 227 of 2005 in the court of the learned Judge, Family Court, Rourkela seeking for divorce. Notice was issued to the opposite party but, the same could not be served. Thereafter, steps for service of notice as provided under Order 5, Rule 20 Code of CPC were taken and in spite of paper publication, the opposite party having not appeared in the case, an ex parte decree of divorce was passed on 9.3.2006. After waiting for the appeal period, the Petitioner contracted second marriage with another woman. The opposite party coming to know about the ex parte decree, filed Misc. Case No. 5 of 2008 before the learned Judge, Family Court, Rorurkela under Order 9, Rule 13 Code of CPC to set aside the ex parte decree. In the impugned order, the learned Judge, Family Court having set aside the ex parte decree, this writ application has been filed challenging the same.

3. As it appears from the discussion made by the learned Judge, Family Court in paragraphs 3, 4, 5 and 6 of the impugned order, after filing of the Civil Proceeding, notice was issued to the opposite party, who was staying at Kolkata then. Notice could not be served due to want of time and an application was filed by the Petitioner for substituted service under Order 5, Rule 20 Code of CPC The said petition having been allowed, notice was published in the Times of India'. In spite of publication of notice, opposite party having not appeared, an ex parte decree was passed by the court. In the application filed under Order 9, Rule 13 C.P.C, the learned Judge, Family Court came to hold that there was no material before the court to come to a conclusion that the opposite party was avoiding service of notice on her and in absence of such a finding, the application filed by the Petitioner under Order 5, Rule 20 could not have been allowed and, therefore, the substituted service made by the Petitioner by way of paper publication cannot be held to be a valid service of notice and, accordingly, the ex parte decree of divorce is liable to be set aside.

4. Shri Yeesan Mohanty, learned Senior Counsel appearing for the Petitioner assailed the impugned order stating that after the ex parte decree was passed, the Petitioner waited for the appeal period to be over and, thereafter married for the second time. Under these circumstances, application under Order 9, Rule 13 C.P.C could not have been allowed and the only course open to the opposite party was to pray for permanent alimony. In this connection, reliance is placed by the learned Senior Counsel on a decision of the Allahabad High Court in the case of S.P. Srivastava Vs. Smt. Prem Lata Srivastava. In the said reported case, the husband filed a suit for divorce u/s 13 of the Hindu Marriage Act. The suit was decreed ex parte on 2.6.1973. The wife filed an application under Order 9, Rule 13 Code of CPC on 15.4.1976 for setting aside the ex parte decree on the allegation that she had never been served with summons on divorce petition. The husband had contracted a second marriage with another woman on 14.4.1976. The trial court having allowed the application filed by the wife under Order 9, Rule 13 Code of Civil Procedure, the matter was brought before the High Court. The High Court on considerat