JOMU KURIAN Vs. SIBY

JUDGEMENT

(1.) This Civil Revision Petition is filed against the order dated 30th September, 1997 in I.A.No. 1650/97 in O.P.No. 131/96. Petitioner is the wife while the first respondent is the husband. Original petition was filed for divorce under the Indian Divorce Act. In the petition for divorce, notice was ordered to the respondents and the case was posted to 13.8.1996 for return of notice. The notice so sent was returned with the endorsement that the address shown was not correct Thereafter, notice was sent through court and the same was returned with the endorsement that the respondents were residing in Bombay. Petitioner collected the address of the respondents in Bombay. On 20.11.1996 notice was taken to the respondents correct address in Bombay by registered post as well as through court. These notices were again returned unserved on 16.6.1997. Since the address in the above notice was correct, it was clear that the respondents were deliberately avoiding the notice. Petitioner filed LA. No. 1650/97 for appropriate orders seeking substituted service of notice by paper publication. The above request was rejected by the District Judge by order dated 30th September, 1997, which reads as follows:

(2.) Learned counsel for the petitioner Sri. Mathew John brought to my notice S.45 and 50 of the Indian Divorce Act. Under S.45 of the Indian Divorce Act, subject to the provisions contained all proceedings under the Act between the parties are to be regulated by the Code of Civil Procedure. S.50 of the Act deals with service of petition. It states that every petition under the Act shall be served on the party to be affected thereby, either within or without India, in such manner as the High Court by general or special order from time to time directs, provided that the Court may dispense with such service altogether in case it seems necessary or expedient to do so. It is true that S.45 makes the Civil Procedure Code applicable. But S.50 insists that the notice shall be served on the party. Thus, personal service is contemplated under the Section. The question is whether in such circumstances, the court has got power to order notice by publication. The proviso to S.50 gives discretion to dispense with personal service in case it seems necessary or expedient to do so.

(3.) In John Over v. Muriel A.I. Over, AIR 1925 Bombay 231 - a Full Bench of the Bombay High Court held as follows: