The Division Bench of the Delhi High Court in the case of Seema Devi vs Shree Ranjit Kumar Bhagat consisting of Justices Sanjeev Sachdeva and Vikas Mahajan held that under Section 15 of the Hindu Marriage Act, 1955, it shall be lawful for either party to the marriage to marry again if no appeal is filed against an ex-parte divorce decree within the period of limitation.
Facts:
The parties’ marriage was solemnized in Bihar in 1998, and a daughter kid was born from the union in 1999, who is now 23 years old. Disputes and differences emerged between the parties, prompting the respondent-husband to file a divorce suit against the appellant at the District Court of Saharsa, Bihar, in 2001. Following the respondent husband's withdrawal application, the Court at Saharsa returned the Divorce Petition for filing in the Court of proper jurisdiction.
Procedural History:
In October 2001, the respondent filed for divorce in Delhi based on cruelty and desertion. The appellant was served with a summons but refused to take it. As a result, the divorce proceedings proceeded ex-parte and the respondent was granted a divorce on the grounds of desertion.
The appellant filed an application under Order 9 Rule 13 CPC after nearly 18 months, in November 2004, claiming that she had not received the summons for the divorce petition and only found out about the ex parte divorce order later. She also argued that the divorce petition could not have been submitted before the District Judge in New Delhi. The respondent claimed that the appellant was aware of the Divorce Petition filed in Delhi and that he had already remarried. The application was dismissed as the court found that the appellant was aware of the divorce petition and had refused to accept the notice of the same.
Contentions Made:
Appellant: The respondent had previously submitted a divorce petition but withdrew it claiming that only the Madhepura District Court had authority. The appellant believed that the divorce petition would be filed only in the Madhepura Court, but the respondent submitted the divorce case in the Delhi Court, which the appellant claimed was fraudulent. The appellant was unaware of the divorce suit pending before the Additional District Judge in Delhi. The appellant argued that she was not involved in any anticipatory bail applications submitted by the respondent and his family members, so knowledge cannot be solely assigned to the applications or orders passed. Therefore, she requested that the impugned decision, divorce judgment, and decree be set aside.
Respondent: The appellant had refused to receive summonses in the past, so the summons was posted at her home. Evidence was presented from a previous case where the appellant acknowledged the respondent had filed for divorce. It was also argued that the respondent had remarried and had children, making the current appeal unnecessary.
Observations of the Court:
The Bench examined Order 5 Rule 9 and Order 5 Rule 17, of the CPC which was amended in 2002. It clarified that delivering a summons through registered post acknowledgement due or by speed post is an acceptable method. If the defendant refuses to accept the summons, the court must declare it as duly served. When the defendant doesn't sign the acknowledgement, the serving officer must paste a copy of the summons on a conspicuous spot on the defendant's residence and provide a report with details of the circumstances and identification of witnesses.
The appellant was initially summoned for divorce proceedings on 16.10.2001, but the postal authorities could not find them. A second summons was issued on 20.12.2001, but the postal authorities reported that the appellant refused to accept it. The court did not declare that the summons had been properly served, as per Order 5 Rule 9(5) of CPC. Another summons was issued on 16.05.2002, but the process issued was not received back. A fresh summons was then issued on 28.11.2002, but it was also unexecuted. On January 23, 2003, a summons was issued for April 8, 2003, to be delivered to the appellant through registered post and the District Judge. The registered post was returned unexecuted, and the process server tried to give the summons to the appellant, but they refused. The server then affixed a copy of the summons and petition to the appellant's residence with two witnesses present. It agreed that the method used to serve the appellant was appropriate and effective and that the service was complete. The learned Additional District Judge correctly ruled that the appellant had been properly served with the summons in the divorce petition because there was no irregularity in the summons’ service. It further opined that even if there was an issue with the way the summons was delivered, according to the second proviso of Order 9 Rule 13, an ex-parte judgment cannot be overturned if it is determined that the appellant was aware of the hearing date and had enough time to attend court, as held by the Supreme Court in Parimal v. Veena @ Bharti.
It opined that the appellant may have known about the divorce petition pending in Delhi, but it was not clear if she had been informed about the date of the hearing, which is necessary for not setting aside an ex parte decree due to problems with summons service. However, the appellant and her father admitted to knowing about the divorce case during maintenance proceedings in the Court of JMFC Madhepura, which could not be disregarded.
The appellant’s claim that the respondent withdrew their divorce petition from the District Judge in Saharsa to file it in Madhepura, but instead filed it in Delhi and committed fraud against the appellant was found to be untrue.
Regarding the respondent’s remarriage, it went on to rely on Section 15 of the Act and held that the provision enables parties to marry again only after the decree of divorce has become final. Relying on Krishnaveni Rai v. Pankaj Rai & Anr., it held that an ex parte divorce decree has the same legal effects as a contested one according to the law. Even Section 15 of the Act does not differentiate between the two. Therefore, if no appeal was filed within the time limit, either party could legally remarry even if the divorce was granted ex parte.
Judgment:
Finding no merit in the appeal, the same was dismissed by the Bench.
Case: Seema Devi vs Shree Ranjit Kumar Bhagat
Citation: MAT.APP. (F.C.) 189 of 2022
Bench: Hon’ble Mr. Justice Sanjeev Sachdeva, Hon’ble Mr. Justice Vikas Mahajan
For Appellant: Appellant in person.
For Respondent: Mr Neeraj Shekhar, Dr. Sumit Kumar and Mr Keshav Bharti, Advocates along with the respondent in person.
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