Smt. Shradhanjali Sahoo @ Lina vs Sh. Surendra Nath Sahoo
2010 Latest Caselaw 3514 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI
                 MAT. APP. 42/2005
                            Judgment delivered on: 28.07.2010

Smt. Shradhanjali Sahoo @ Lina  ..... Appellant
                     Through: Mr. M.R.Mishra, Advocate
                     Versus
Sh. Surendra Nath Sahoo                   ..... Respondent
                     Through: Nemo.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may          Yes
   be allowed to see the judgment?

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported             Yes
   in the Digest?

KAILASH GAMBHIR, J. Oral:
*

1. By this appeal filed under Section 28(1) of the

Hindu Marriage Act, 1955 r/w Section 104 and Order 43 Rule

1 of the CPC, the appellant seeks to challenge the order

dated 29.03.2005 passed by the Ld. ADJ thereby dismissing

the application filed by the appellant under Order 9 rule 13

CPC to seek setting aside of the ex-parte judgment and

decree dated 25.09.2003.

2. Brief facts of the case as stated by the appellant in

the appeal are that she derived the knowledge about the

pendency of the divorce petition filed by the respondent only

before the Ld. Family Judge, Cuttack, Orissa. The appellant

states that in the said proceedings pending before the

Cuttack Court she was informed by the respondent about the

said divorce petition filed by him on 5.9.2002 and also

service of the appellant being effected through publication in

the newspaper 'Statesman' dated 7.9.2002. After having

gained the said knowledge, the appellant could lay her hands

on the said newspaper dated 7.9.2002 only on 13.09.2002. It

is further stated that due to the paucity of time and the fact

that the appellant was staying at a distance of about 2000

kilometres from Delhi with her small daughter, she was not

in a position to appear before the concerned court at Delhi in

the divorce proceedings. The appellant also states that she

sent a letter dated 16.09.2002 to the Ld. Additional District

Judge inter alia praying for the payment of Rs.5000/-

towards litigation expenses to contest the case in Delhi. The

father of the appellant also wrote a separate letter to the Ld.

AdJ informing the judge about the decision of the appellant to

file a transfer petition before the Hon'ble Supreme Court of

India. She further states that the appellant sent a letter of

request to the Hon'ble Chief Justice of India dated 7.10.2002

for the transfer of the HMA case No. 888 of 2001 pending in

the Tis Hazari Courts to the Family Court, Cuttack, Orissa.

The appellant received a letter dated 15.11.2002 from the

Assistant Registrar, Supreme Court, New Delhi intimating

the appellant that no action could be taken on the request

made by the appellant as it was in contravention of Order X

R.5, 6 (1) of the Supreme Court Rules, 1966. Thereafter, the

Appellant on 27.01.2003 made an appeal to the Supreme

Court Legal Services Committee seeking legal aid for

transfer of divorce proceedings pending in Delhi to Cuttack,

Orissa. The appellant further states that on 3.2.2004, she

learnt from the Supreme Court Legal Services Committee

regarding order dated 19.01.2004 passed by the Hon'ble

Supreme Court in the said transfer petition bearing No.

Transfer Petition (C ) No. 6/2004 moved by the appellant and

the grant of stay of the said divorce case pending before the

Additional District Judge. She also states that she received

another letter dated 27.04.2004 on 5.5.2004 along with a

copy of order dt. 12.04.2004 wherefrom she learned that the

transfer petition filed by her was disposed of as having

become infructuous as the case sought to be transferred was

finally decided by the ld. ADJ on 25.09.2003. The appellant

thus states that she came to know about the ex-parte decree

of divorce dated 25.09.2003 passed in favour of the

respondent only from the W.S. filed by the respondent in the

maintenance suit No. 59/2002 on 29.06.2004 pending before

the Family Court at Cuttack, Orissa. The appellant also

states that she was a distressed woman having no source of

income with a two year old child and was not in a position to

contest the proceedings before the Delhi Courts. After

having come to know about the said ex-parte decree the

appellant immediately took steps to move an application

under Order 9 rule 13 CPC to set aside the ex-parte decree of

divorce but the said application of the appellant was

dismissed by the Ld. Trial Court vide order dated 29.03.2005.

Assailing the said order, the appellant has preferred the

present appeal before this court.

3. Challenging the said order, counsel for the

appellant submits that the Ld. Trial Court has ignored the

fact that the appellant was a distressed woman with no

financial source and was not in a position to appear before

the said court at Delhi, more particularly, when the appellant

was also having a small child of two years. Counsel further

submits that the appellant came to know about the filing of

the said case by her husband only in the maintenance

proceedings at Cuttack when she was told about the filing of

the divorce petition by him and her service through

publication in the newspaper 'Statesman'. The contention of

the counsel for the appellant is that the appellant was never

given any copy of the divorce petition and in the absence of

the same, the appellant was not in a position to contest the

divorce case. Counsel also submits that the ld. Trial Court

has not appreciated the fact that the appellant could not have

appeared before the said court due to insufficiency of time

for her appearance before the court. In support of his

argument, counsel for the appellant has referred to Order 9

Rule 6 (c) CPC. Counsel for the appellant further submits

that the Ld. Trial Court has wrongly observed in the

impugned order that the father of the appellant had

presented the application in the court himself. Counsel

submits that the fact of the matter is that the said application

was sent by the father of the appellant as well as by the

appellant by post. Counsel further submits that the

appellant had never appeared before the Supreme Court also

and the transfer petition was filed by the Legal Aid

Committee of the Supreme Court on the request sent by the

appellant by post. Counsel thus submits that the non-

appearance of the appellant before the said court was neither

intentional nor deliberate but was due to the aforesaid

bonafides.

4. I have heard learned counsel for the appellant and

given my thoughtful consideration to the pleas advanced by

him.

5. The respondent has not preferred to contest the

present appeal.

6. The marriage between the appellant and

respondent was solemnized on 29.11.1999 and on 13.10.2000

she gave birth to a girl child. Thereafter, the respondent

filed a petition for divorce and an ex-parte decree of divorce

was passed by the learned Additional District Judge against

the appellant vide judgment and decree dated 25.9.2003,

thereby dissolving the marriage of the appellant with the

respondent under Section 13(1) (ia) of the Hindu Marriage

Act. After having learnt about the said judgment and decree

of divorce the appellant vide her application dated

10.9.2004 filed under Order 9 Rule 13 CPC sought setting

aside of the said ex-parte decree of divorce. The appellant in

her said application pleaded knowledge of the institution of

the said divorce petition by her husband on 5.9.2002, when

the same was disclosed to her by her husband in the case

filed by the appellant for grant of maintenance (Suit No.

59/2002) before the Family Court, Cuttack, Orissa. The

appellant has further taken a stand that the appellant was

not disclosed the exact details of the divorce petition filed

by the respondent and it is only on 13.9.2002 the appellant

could lay her hands on the notice published in the newspaper

'Statesman' dated 7.9.2002. The appellant has further stated

that it was impossible on her part to have appeared before

the trial court from a distance of more than 2000

kilometres from Delhi. The appellant has further stated that

the application dated 16.9.2002 was sent by the appellant

through post directly to the Court of the ADJ with a request

to award litigation expenses for a sum of Rs.5,000/-. The

appellant also made an appeal in writing to the Hon'ble

Chief Justice of India through postal request dated 7.10.2002

for transfer of the pending HMA case from the court at Delhi

to Cuttack, Orissa. The appellant has also taken a stand that

the Hon'ble Supreme Court had granted stay of the said

HMA suit No. 888/2001 in the said transfer petition filed by

the appellant but ultimately the said transfer petition was

disposed of on account of the fact that in the meanwhile, the

learned ADJ had granted ex-parte decree of divorce dated

25.9.2003.

7. It is not in dispute that the appellant was served

through publication in the newspaper 'Statesman' dated

7.9.2002 for her appearance in the court on 13.9.2002. It is

further not in dispute that the appellant had come to know of

the said notice but certainly could not have appeared before

the court on the same date when she could lay her hands on

the said notice. Instead of causing appearance before the

trial court the appellant chose to write a letter to the said

concerned court in Delhi claiming some litigation expenses

and in the meanwhile, the appellant through another postal

communication addressed to the Supreme Court sought

transfer of the said divorce petition to the Family Court,

Cuttack, Orissa. The learned trial court accepted due

service of the appellant at least when she was served

through publication. The Court also took into consideration

the fact that the father of the appellant had appeared in the

said divorce petition when he had informed the court about

filing of an application before the Supreme Court seeking

transfer of the said divorce petition. The court thus felt that

the appellant did not take any steps to seek setting aside of

the ex-parte decree within the period of 30 days as

prescribed in Schedule III of the Limitation Act. The trial

court also observed that even if the knowledge of the

appellant is counted from 29.6.2004, the alleged date when

she came to know about the said ex-parte decree being

passed against her, even then the application was not moved

by the appellant within the stipulated time. The main reason

which weighed with the learned trial court was that when

the father of the appellant could appear before the trial

court to apprise the court about their move to seek transfer

of the petition then why the appellant could not have caused

appearance before the trial court to contest the said divorce

petition.

8. Counsel for the appellant has raised serious

dispute with regard to the finding of the learned trial court

to hold that the father of the appellant had appeared and had

moved an application to apprise the court about the filing of

a transfer petition before the Hon'ble Supreme Court. The

contention of the counsel for the appellant was that in fact

the father of the appellant had never appeared and even his

attendance was never recorded by the court on 30.9.2002,

but the learned trial court wrongly assumed the presence of

the father of the appellant on 30.9.2002. This contention of

the counsel for the appellant appears to be correct. Perusal

of the order dated 30.9.2002 clearly shows that only the

respondent was present along with his counsel and the

presence of the father of the appellant has not been

recorded. There is a letter dated 27.09.2002 filed on record

by the father of the appellant and it appears that the said

letter was received by the court through post and the same

was directed to be placed on 30.09.2002 when the main

matter was fixed before the court. The said letter had

wrongly been taken as an application by the learned trial

court. The learned trial court also wrongly assumed as if

the father of the appellant had appeared before the

matrimonial court. It can also be found from the record that

earlier the appellant herself had written a letter to the court

claiming grant of litigation expenses. Even before the

Supreme Court the transfer petition was filed by the

appellant with the help of Supreme Court Legal Services

Committee and at no stage the appellant or her father had

appeared before the Supreme Court. So far the service of

the appellant through publication is concerned, the notice

was published in the newspaper 'Statesman' dated 7.9.2002

for the next date fixed in the court i.e. 13.9.2002. As per the

case of the appellant she could lay her hands on the said

notice only on 13.9.2002 and therefore it was not possible

for the appellant to have caused appearance before the said

court on that very date.

9. The appellant who has been a resident of

Cuttack, Orissa which is a far off place and with a child of 2

years under her parent's custody, had made a request

through a letter for grant of litigation expenses for an amount

Rs. 5,000/- and it could have been better if the Court would

have given directions to the respondent to send the said

amount to her so as to enable her to travel to Delhi for

contesting the said divorce petition. Finding no other

option, the appellant had sent a letter to the registry of the

Supreme Court which letter was sent by the registry to the

Supreme Court Legal Services Committee and based on the

said letter a transfer petition was filed on behalf of the

appellant to seek transfer of the said divorce petition to

Cuttack, Orissa, but before any effective order could be

passed by the Supreme Court the matrimonial court granted

ex-parte decree of divorce.

10. Taking into consideration the aforesaid totality of

the circumstances, this court is of the view that the appellant

has given sufficient explanation for her non-appearance

before the said matrimonial court and accordingly the ex-

parte divorce judgment and decree dated 25.9.2003 is

hereby set aside.

11. The appellant is accordingly directed to appear

before the learned trial court on ---- and take necessary

steps in the matter.

July 28, 2010                               KAILASH GAMBHIR,J