Exparte – Divorce petition – Merely on production of a postal receipt, the Court had proceeded ex parte against the wife without verifying the fact, as to whether the address given was actually her residential address or not – Exparte Decree set aside.

Mr. Augustine George Masih, J.:- CM-17274-CII-2017

1. Prayer in this application is for exemption from filing certified copies as well as typed copies of Annexures A-1 to A-9. The application is allowed. Exemption is granted from filing certified copies as well as typed copies of Annexures A-1 to A-9, subject to all just exceptions.

CM-17275-CII-2017

2. Prayer in this application is for placing on record Annexures A-1 to A-9.

3. The application is allowed. Annexures A-1 to A-9 are taken on record, subject to all just exceptions.

FAO-M-351-2015

4. This appeal has been preferred by appellant-Sawati Kumari (wife) against an ex parte decree passed by the Additional District Judge, Kapurthala, dated 13.07.2015, whereby, divorce petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘H.M. Act’) filed by respondent-Squadron Leader Kunal Kaushal (husband) has been decreed. Apart from challenge to the decree on merits, order dated 27.10.2014 proceeding ex parte against the appellant-wife and order dated 31.03.2015 when again she was proceeded against ex parte in the application for amendment of the petition, have been assailed on the ground that she had never been served either in the divorce petition preferred under Section 13 of the H.M. Act or in the application for amendment of the divorce petition filed thereafter by the respondent-husband.

5. Challenge to these orders is embodied upon the assertion that the address, which has been given in the divorce petition, is not her residential address, rather, it is the official address of her father and on that address also, she has not been served.

6. Upon notice having been issued, respondent-husband has put in appearance. Record of the Court below was summoned and has been perused with the assistance of the counsel for the parties.

7. It is the contention of the learned counsel for the appellant-wife that while passing the order dated 27.10.2014, when appellant-wife was proceeded against ex parte in divorce petition under Section 13 of the H.M. Act, the Court had based its order on the fact that the period of 30 days had been elapsed leading to the presumption of due service upon her. Since none had put in appearance on behalf of the appellant-wife as she had not been served, she had been proceeded against ex parte. Some evidence was led by the petitioner-husband and thereafter, an application for amendment of the divorce petition was filed, which was taken up by the Court for hearing on 07.03.2015 and issued notice to the appellant-wife for 30.03.2015 on filing of registered cover. Since Court was on leave on 30.03.2015, the case was taken up on 31.03.2015, where, the report was that respondent has been duly served through registered/AD. None had put in appearance on her behalf and therefore, she was proceeded against ex parte. Amendment to the divorce petition was allowed, ex parte evidence was led and decree of divorce dated 13.07.2015 passed in favour of the respondent-husband.

8. Appellant-wife, on having come to know of this fact, filed this appeal and has challenged the findings, which have been recorded, praying for setting aside the orders dated 27.10.2014 and 31.03.2015 proceeding against the appellant-wife ex parte and the judgment and decree dated 13.07.2015 passed by the trial Court.

9. On the other hand, learned counsel for the respondent-husband has vehemently argued that the address as has been given in the petition is the correct address as she was residing with her father, who was working in State Bank of India, Turki Branch, District Mujaffarpur, Bihar. He further states that it may be, at the initial stage, when the ex parte proceedings were initiated against the appellant-wife on 27.10.2014, registered cover had not been received back but in the application for amendment of divorce petition, she had been duly served as the acknowledgment of the registered notice having been received, stands signed by her on 17.03.2015. The said