Jharkhand High Court
Smita Akhouri @ Rani vs Abhishek Kumar Shrivastav @ Rishi on 1 December, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Appellate Jurisdiction)
FA No. 363 of 2018
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Smita Akhouri @ Rani, wife of Abhishek Kumar Shrivastav, daughter of
Sushil Akhouri, resident of Punam Villa, North Shivpuri, PO: Hazaribag, PS:
Sadar, District: Hazaribag. ... .... Appellant
Versus
Abhishek Kumar Shrivastav @ Rishi, son of late Shiv Ratanlal, resident of
Qtr. No. 136/A, Railway Colony, PO + PS Barwadih, District Latehar.
.... ... Respondent
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant(s) : Mr. Prabhat Kumar Sinha, Advocate
For the Respondent : Mr. Ashok Kumar, Advocate
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ORDER
1st December 2022
Per, Shree Chandrashekhar,J.
Mr. Prabhat Kumar Sinha, the learned counsel for the appellant,
submits that before Transfer Petition (Civil) No. 42 of 2017 filed by the
appellant seeking transfer of Original Maintenance Suit No. 10 of 2017 (in
short, "divorce case") at Family Court, Latehar was finally decided, the
divorce case was decreed ex-parte against the appellant vide judgment dated
10th January 2018.
2. Mr. Prabhat Kumar Sinha, the learned counsel for the appellant,
brings to our attention the order dated 12th June 2018 passed in the said
Transfer Petition.
3. The order dated 12th June 2018 records as under:
"06/Dated:12.06.2018
1. This transfer petition has been filed under Section 24 of the
Civil Procedure Code for transfer of Original (Matrimonial ) Suit
no. 10 of 2017, pending in the Court of learned Principal Judge,
Family Court, Latehar to the Court of Principal Judge, Family
Court, Hazaribag.
2. Learned counsel has submitted that the petitioner was
subjected to physical harassment and mental torture due to non-
fulfilment of unlawful demand of Rs.5,00,000/- (five lakhs) by the
opposite party-husband. That she was compelled to leave her
matrimonial home and that she has been residing with her
grandfather at Hazaribag. That she has filed a complaint case
bearing Complaint Case no. 41 of 2015 against the opposite party-
husband. That the opposite party in order to save his skin has filed
the present matrimonial suit in 2017. It is submitted that the
petitioner does not have any independent source of income neither
any fund to defend the suit by engaging a counsel in the courts of
Latehar. That the petitioner is facing great hardship and difficulty
in meeting the travelling expenses from Hazaribag to Latehar.
On the said ground, the transfer has been sought.
3. It appears from the record that notice has been validly
served upon opposite party. On 27.03.2017 when the case was
called out, none had appeared on behalf of opposite party.
However, in the interest of justice opportunity was given to the
opposite party to file his appearance on the next date. Today also,
the opposite party has not appeared.
4. Heard. Considering the fact that the petitioner has
instituted criminal case against opposite party-husband at
Hazaribag and the opposite party has to face trial in the said case.
Original (Matrimonial) Suit no. 10 of 2017 was filed by opposite
party subsequent to the filing of the said complaint case by the
petitioner. Moreover, the petitioner does not have any independent
source of income and she is facing great difficulty and hardship in
travelling from Hazaribag to Latehar neither she has sufficient
funds to defend the suit. Thus, keeping in view the inconvenience of
the petitioner, it is deemed just and proper to transfer Original
(Matrimonial) Suit no. 10 of 2017, pending in the Court of learned
Principal Judge, Family Court, Latehar to the Court of Principal
Judge, Family Court, Hazaribag at the stage at which it is, if the
case has not been disposed off as yet.
5. In the result, the transfer petition is, hereby, allowed.
6. Let a copy of this order be communicated to the courts
below forthwith for needful."
4. The respondent filed the divorce case seeking dissolution of his
marriage solemnized with the appellant on 28th November 2012 at Punam
Villa at Hazaribag on the ground of desertion as envisaged under section 13
(1) (i-b) of the Hindu Marriage Act, 1955 (in short, "HM Act").
5. As noticed above, the appellant who had filed Transfer Petition
(Civil ) No. 42 of 2017 did not participate in the proceeding of the aforesaid
divorce case and on the basis of tracking report indicating service of
summons upon her the divorce case was set for ex-parte hearing against her.
Finally, the divorce case was decreed on the basis of the evidence tendered by
the respondent which the Family Court considered sufficient to hold that the
respondent was able to establish desertion on the part of the appellant from
5th February 2014.
6. Without going into the merits of the case, Mr. Prabhat Kumar
Sinha, the learned counsel for the appellant, would submit that the procedure
adopted by the Family Court in setting the divorce case for ex-parte hearing
was flawed in law, inasmuch as, on the basis of the tracking report, which is
not supported by affidavit of the respondent and not marked as exhibit during
the trial, a presumption on validity of service of summons upon the
respondent cannot be raised.
7. The learned counsel for the appellant has brought to our notice
the provisions under Rules 9,15 and 19 of Order V of the Code of Civil
Procedure to submit that unless the tracking report is supported by an
affidavit of the process server or of the petitioner the Court can not raise a
presumption on validity of service of summons upon the respondent.
8. However, the learned counsel for the appellant is not challenging
that part of the judgment dated 10th January 2018 by which the divorce case
has been decreed ex-parte by dissolving the marriage between the parties
solemnized on 28th November 2012 at Punam Villa, Hazaribag.
9. In view of the statement made on behalf of the appellant on
20th October 2022 that the appellant intends to confine the present First
Appeal only to the grant of alimony and maintenance under section 25 of the
HM Act, we are not required to examine legality of the decree of divorce by
the Family Court.
10. Section 25 of the HM Act provides that the Court at any time
even after passing of decree may pass an order granting such sums of
money periodically or monthly for maintenance of the respondent taking into
consideration the income and other assets of the parties. Section 25 of the
HM Act further provides that while making an order the Court shall have due
regard to conduct of the parties and other circumstances of the case.
11. The provisions of Section 25 of HM Act is extracted below:
"25. Permanent alimony and maintenance - (1) Any Court
exercising jurisdiction under this Act may, at the time of passing
any decree or at any time subsequent thereto, on application made
to it for the purpose by either the wife or the husband, as the case
may be, order that the respondent shall pay to the applicant for her
or his maintenance and support such gross sum or such monthly or
periodical sum for a term not exceeding the life of the applicant as,
having regard to the respondent's own income and other property,
if any, the income and other property of the applicant, the conduct
of the parties and other circumstances of the case, it may seem to
the Court to be just, and any such payment may be secured, if
necessary, by a charge on the immovable property of the
respondent.
(2) If the Court is satisfied that there is a change in the
circumstances of either party at any time after it has made an
order under sub-section (1), it may, at the instance of either party,
vary, modify or rescind any such order in such manner as the
Court may deem just.
(3) If the Court is satisfied that the party in whose favour an
order has been made under this section has remarried or, if such
party is the wife, that she has not remained chaste, or, if such party
is the husband, that he has had sexual intercourse with any woman
outside wedlock, it may at the instance of the other party vary,
modify or rescind any such order in such manner as the Court may
deem just."
12. Section 25 talks of making an application against the respondent
seeking maintenance and alimony, however, as noticed above, the divorce
case was decreed ex-parte and, therefore, there was no occasion for the
appellant to make an application for maintenance and alimony.
13. Having regard to the aforesaid facts and circumstances in the
case, we deem it proper to restore Original Matrimonial Suit No. 10 of 2017
to its original record in the Family Court at Latehar but only for the purpose
of considering the claim of the appellant for grant of maintenance and
alimony as envisaged under section 25 of the HM Act. We indicate that the
party shall be afforded sufficient opportunity to lead evidence, however, only
on the issue of grant of maintenance and alimony under section 25 of the
HM Act.
14. We further order that on the divorce case being restored to its
original file, the same shall be transferred to the Family Court at Hazaribag
as ordered by this Court vide order dated 12th June 2018 in Transfer Petition
(Civil) No. 42 of 2017.
15. First Appeal No.363 of 2018 stands disposed of in the aforesaid
terms.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 1st December, 2022
SB/Nibha-AFR
