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IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Surya Kant
The Hon’ble Mr. Justice R.P. Nagrath
FAO No. 3767 of 2011
Saroj
v.
Rajender Kumar
{Decided on 19/03/2013}
Divorce--Ex-parte Decree of divorce--Service of summons--It was shown that wife has refused to accept notice and munadi was effected--Report was obtained in connivance with Process Serving Agency--Exparte decree set aside.
(A) Hindu Marriage Act, 1955, S.24--Maintenance--Litigation expenses to wife--Held;
(i) Hapless wife is not awarded adequate litigation expenses on the date of her appearance or within some reasonable period without realizing the expenses incurred on every step.
(ii) The litigation expenses even if awarded are also nothing but a mere lip service, completely over-looking the prevailing fee structure of the Bar or the other actual expenses.
(iii) No coercive steps are being taken for the recovery of maintenance pendente-lite or the maintenance awarded under Section 125 Cr.P.C., leaving the hapless wives at the mercy of God.
(iv) Such like attitude of the Courts, especially the Family Courts, is totally unacceptable and such dismal performance can never achieve social justice.
(v) All the District & Sessions Judge[s] and the Presiding Officers of the Family Courts in the States of Punjab, Haryana and U.T., Chandigarh, for necessary compliance--Criminal Procedure Code, 1973, S.125. (Para 22)
(B) Hindu Marriage Act, 1955, S.13--Ex-parte Decree of divorce--Setting aside of--Decree obtained by fraud--Service of summons--Husband gave address of wife's parental home whereas wife was living with him--No house number was mentioned, only name of colony was mentioned--It was shown that wife has refused to accept notice and munadi was effected--Husband informed, his father-in-law to take his daughter back as she is no more his wife and he has remarried--Held; Report was obtained in connivance with Process Serving Agency--Exparte decree set aside--Civil Procedure Code, 1908, O.9 R.13 and O.5 R.20. (Para 13 & 20)
(C) Civil Procedure Code, 1908, O.9 R.13 & O.5 R.20--Summons--Serving of--Exparte decree--Setting aside of--Service of summons by Munadi--Held;
(i) While there can be several means of affecting service on a party to the satisfaction of the Court, the old and obsolete methodology of conducting a Munadi [which is seldom conducted] is being followed as a rule of convenience.
(ii) There was no House Number mentioned in the summons nor was it known that the appellant was residing in that area.
(iii) The Process Server also does not know the number of any building where the affixation took place.
(iv) Exparte decree set aside--If this kind of 'Munadi' is conducted in a Sub-Urban area one can imagine the havoc being played by the Process Serving Agency, who in a way has become instrumental in victimizing the innocent unserved parties.
(D) Hindu Marriage Act, 1955, S.13--Divorce--Exparte decree--Second Marriage--Marriage Certificate issued by Arya Samaj Mandir--Husband admitted--That neither his own nor that of the girl's parents were present at the time of the said marriage nor any rituals were performed--The manner in which the Certificate has been issued suggests that the Society is indulging in mal-practice of issuing fake Marriage Certificates for extraneous considerations. There was no reason at all for the Family Court to be influenced by this kind of alien factors.
Mr. Surya Kant, J.: - The wife is in appeal before us against the judgment and order dated 09th March, 2011 whereby her application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure to set aside the order dated 12th February, 2009 of proceeding ex-parte against her and the consequential judgment and decree of divorce dated 01st April, 2009, has been dismissed by the Family Court, Faridabad.
2. The appellant and the respondent got married on 19th February, 2007 and a male child was born out of the wedlock on 23rd July, 2008. The appellant – wife was allegedly thrown out of her matrimonial home in the 2nd week of July, 2008 but pursuant to a compromise reached through the intervention of the Panchayat, which was duly executed on a stamp paper on 23rd November, 2008, the appellant was brought back to her matrimonial home where she continued to stay with the respondent till 20th April, 2009.
3. The respondent-husband however, filed a petition for divorce under Section 13 of the Hindu Marriage Act, 1955 in which the appellant-wife was shown to be residing at her parental house in Kisan Mazdoor Colony, Old Faridabad, though according to her, she was actually living with the respondent. On the strength of the wrong address, the appellant-wife was shown to have refused to accept the notice and was proceeded against ex-parte on 12th February, 2009 with a resultant ex-parte decree of divorce passed on 01st April, 2009.
4. The appellant-wife moved an application on 01st June, 2009 to recall the above stated ex-parte orders averring that on 25th May, 2009 her father received a telephonic call on his mobile phone from the respondent-husband asking him to take the appellant back and during the conversation, the respondent disclosed that the appellant was no longer his wife and that he had already contracted second marriage with another girl. On the very next day, i.e., 26th May, 2009, some police-man also called the appellant’s father on the latter’s mobile phone advising him not to harass the respondenthusband who had obtained an ex-parte decree of divorce on 01st April, 2009 and claimed to have re-married.
5. Appalled, the appellant and her father then rushed to the Court and found out about the judgment and decree dated 01st April, 2009 and applied for its certified copy on 28th May, 2009 and on receipt of the same on the next day, i.e., 29th May, 2009, the application to set aside the order of ex-parte dated 12th February, 2009, was moved.
6. The appellant averred in her application that she was proceeded against ex-parte on the basis of a report of some Munadi in the locality and that of the Process Server on the summons issued on 15th October, 2008, which was effected or sent at an address where she was not residing at the relevant time. The precise allegation of the appellant-wife was that the ex-parte decree of divorce was obtained through fraudulent means.
7. The respondent-husband contested the above stated application and claimed that it had become infructuous as after the grant of ex-parte decree of divorce, he got re-married to one Kamla on 14th May, 2009 and both of them were now living together as husband and wife and that the appellant would gain nothing even if the ex-parte judgment and decree were to be set aside.
8. The Family Court framed the following issues on the basis of pleadings:-
1. Whether there are sufficient grounds to set aside the ex-parte order dated 12.02.2009 and judgment and decree thereof dated 01.04.2009, as alleged? OPA.
2. Whether the application is time barred? OPR
3. Whether the application is not maintainable, as alleged? OPR.
4. Relief.
9. The appellant appeared as AW1 and tendered her affidavit in evidence. She also produced the Compromise Deed, [Ex.A1] besides the evidence of Ramji Lal – her father [AW2] and one Ramesh as AW3. The respondent – husband also appeared as RW1 and produced Bal Kishan and Nitin Kumar, RW2 and RW3 respectively, besides documents [Ex.R
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