M MARY RATNAM Vs. M BABU RAO

JUDGEMENT

(1.) In this case which comes up before us on a reference by the District Judge under S.17 of the Indian Divorce Act, 1869 (Act IV of 1869), hereinafter referred to as 'the Act', a question of considerable importance and frequent occurrence arises. The question is whether fresh notice of hearing should be effected on the party to be affected before a decree for dissolution of marriage passed by the District Judge is confirmed under S.17 of the Act by the High Court.

(2.) For the full and proper appreciation of the problem posing for resolution, the facts may be made plain at the outset. The wife, Meesarapu Mary Ratnam presented a petition before the District Judge, West Godavari at Elura, for dissolution.of the marriage with her, husband Meesarapu Baburao under S.10 of the Act on grounds of adultery coupled with cruelty and desertion. The respondent-husband on service of notice of the petition appeared by an advocate and filed a counter admitting the marriage and denying the allegation of adultery coupled with cruelty and desertion. But subsequently there was no representation on behalf of the respondent in the case. Therefore, he was set ex parte. After examining the petitioner and her witnesses, the learned District Judge granted a decree for dissolution of the marriage subject to confirmation by the High Court under S.17 of the Act and made a reference to the High Court for confirmation. Notice was sent to the respondent by the High Court, but it was returned unserved with the endorsement of the postman that no such person was present at the address given in the notice. The petitioner was not able to furnish the correct address of the respondent when she was directed to do so.

(3.) Therefore, the question that arises for consideration is whether fresh service of notice of the proceedings under S.17 of the Act should be effected on the affected party who had remained ex parte in the original proceedings before the District Judge under S.10 of the Act before the High Court confirms the decree for divorce.