BABITA LAUL Vs. VIJAY LAUL

JUDGEMENT

(1.) CHALLENGE in this appeal is to the order passed by Additional District Judge, Chandigarh dismissing the application filed by appellant under Order 9 Rule 13 of Code of Civil Procedure (for short 'CPC') for setting aside ex parte order/decree dated 21.12.2002 passed by Principal Judge, Family Court, Kanpur Nagar.

(2.) BRIEFLY stated the facts of the case are that plaintiff and respondent got married on 10.10.1991 at Chandigarh and were blessed with a daughter born in the month of August 1992. The respondent filed a petition for divorce dated 26.7.2001 in the Court of Principal Judge, Family Court, Kanpur Nagar bearing No. 551 of 2001 titled as Vijay Kumar Laul v. Babita, inter alia, on the ground that the appellant had deserted the respondent in the year 1994. Notice of the divorce petition was issued by the Family Court of Kanpur through registered post and was also served by way of substituted service of publication of notice in the newspaper "Amar Ujala" published from Jalandhar on 28.3.2002 but the appellant failed to appear before the Family Court and was thus, proceeded against ex parte. After recording ex parte evidence, the Family Court at Kanpur vide its judgment dated 21.12.2002 allowed ex parte divorce to the respondent and marriage between the appellant and the respondent was dissolved. On 27.5.2003, the appellant filed an application under Order 9 Rule 13 of CPC before the Family Court at Kanpur Nagar in which she alleged that she had never received any notice from any Court regarding pendency of the divorce petition filed by respondent nor was in the knowledge of pendency of any such divorce proceedings. She also alleged that she came to know that the respondent was going to contract second marriage which led to filing of a complaint to the SSP Kanpur Nagar and a suit for permanent injunction at Chandigarh in the Court of Mr. Pushvinder Singh, Civil Judge (Jr. Divn.), Chandigarh restraining the respondent from contracting second marriage. In this suit, dasti summons were issued on 28.5.2003. She also alleged that on 8.5.2003 her father along with counsel went to Kanpur Nagar to execute the summons where he came to know that the respondent had taken a decree of divorce. The application was contested by the respondent in which preliminary objection was taken that the application is barred by time, hence, it is not maintainable and the respondent has already married with one Sonu Khanna, daughter of late A.P. Khanna as per Hindu law and got it registered at the office of Sub Registrar, Hindu Marriage at Kanpur, therefore, application under Order 9 Rule 13 CPC has become infructuous. On merits, it was alleged that the appellant had knowledge of the proceedings at Kanpur Nagar as many registered notices were issued by the Court to her and lastly she was served by way of publication but in spite of that she failed to appear in the Court. Consequently, she was proceeded against ex parte. During the pendency of application filed under Order 9 Rule 13 CPC before the Court, the appellant filed a petition under Section 25 of Code of Civil Procedure before the Apex Court for transfer of the application filed under Order 9 Rule 13 CPC to Chandigarh which was allowed on 16.2.2004 and the application along with record of the divorce petition was transferred to the Court at Chandigarh.

(3.) IN order to substantiate her claim, appellant Babita examined herself as PW1 and her father M.P. Bharara as PW2 and relied upon documents Ex.P1 letter of appointment, Ex.P2 copy of the summon, Ex.P3 copy of complaint filed with SSP Kanpur, Ex.P4 receipt and Rail Ticket, Ex.P5 complaint filed by the respondent with Deputy Commissioner, Ex.P6 Railway tickets and Ex.P7 to Ex.P9 hotel bills. As against this, respondent Vijay Laul examined himself as RW1 and tendered a letter written by the appellant to her mother as Ex.R1 and telegram received by him from the appellant on 28.4.2003 as Ex.R2. The learned trial Court discussed issues Nos. 1 and 2 together and found that the respondent had given address of the appellant in divorce petition as resident of H.No. 1268, Sector 22-B, Chandigarh and accordingly notice of the petition was issued to her on the same address which was received back unserved with the report that appellant is not available at the given address. The appellant alleged that in the year 2001-2002, she was not residing at the address given by the respondent as she had already shifted to some other place but she admitted that she used to reside in the said house and had never informed the respondent about her new address. It was also found by the Court below that it is admitted case of the appellant that after the year 1994, she never communicated with the respondent and it was observed as to how the respondent will come to know about the new address of the appellant, which was to be explained by the appellant. The appellant also admitted to have never received written communication from the respondent after the year 1994, therefore, it was concluded that in the year 2001, when the respondent filed divorce petition against the appellant she was residing in Sector 22-B, Chandigarh at the address given in the divorce petition and notice of the divorce petition was sent to her on that address without informing her new address to the respondent. It was also found that if the appellant could not be served in ordinary process, she was served through substituted service of publication in a newspaper "Amar Ujala" published from Jalandhar but still the appellant did not appear before the Family Court. The learned Court below also found that the appellant had sufficient notice and information about the second marriage of the respondent after passing of ex parte decree of divorce, which is admitted by the appellant herself in her cross examination as she stated that in the month of April 2003, she came to know from somebody that the respondent is going to perform second marriage and that she filed a suit for injunction at Chandigarh for restraining the defendant from contracting second marriage. The appellant had failed to mention date of knowledge of the said fact in her affidavit but had admitted that she was knowing that the respondent is going to perform second marriage on 27.4.2003. In the light of this fact, the learned Court below came to a conclusion that it cannot be believed that though the appellant had the knowledge of second marriage yet she did not know about the ex parte decree of divorce. It was also observed that the appellant has intentionally not produced the copy of plaint of suit for injunction. She had otherwise, placed on record copy of complaint sent to Sr. Superintendent of Police, Kanpur Nagar in which she admitted that the respondent was going to contract second marriage on 27.4.2003. The Court below observed that if she had the knowledge of this fact which really materialised on the said date she should have gone to stop the respondent from performing the second marriage but she failed to take such step alleging that she had no knowledge about the decree of divorce. The learned Court below also found that the story coined by the appellant that she came to know about the impugned ex parte decree on 28.5.2003 through her father when he visited Kanpur, is unbelievable. The learned Court below also observed that the application filed under Order 9 Rule 13 CPC is time barred as the appellant had the knowledge of ex parte decree and the case set up by her that she came to know on 8.5.2003, is without any basis. Secondly, the ex parte decree was passed on 21.12.2002 and the respondent had remarried on 27.4.2003 whereas under  Section 15 of the Hindu Marriage Act if the period of limitation expires and the decree of divorce is not challenged then party to the marriage having decree of divorce has a right to get remarried and there is nothing unlawful. In the light of this fact, the learned Court below observed that the appellant had contracted second marriage before service of injunction notice and thus, relied upon decision of Allahabad High Court in the case of S.P. Srivastava v. Smt. Prem Lata Srivastava AIR 1980 Allahabad 336 in which it was held that the application under Order 9 Rule 13 CPC has become infructuous and was dismissed as such.