Rajasthan High Court
Udaiveer Singh S/O Bhagwan Singh vs Smt. Kusum Singh W/O Udaiveer ... on 31 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 69/2019
Udaiveer Singh S/o Bhagwan Singh, Aged About 36 Years, R/o
Kherli Tehsil Kathumar District Alwar Presently Assistant
Commandant Irla No. 11006299, B.S.F. 06, Batalion Tura,
Meghalaya, Mobile 9660331025
----Petitioner
Versus
Smt. Kusum Singh W/o Udaiveer Singh D/o Niranjan Singh,
Aged About 32 Years, R/o Kherli Tehsil Kathumar District Alwar
Presently Resident of Chaitanya Lok Colony, Palikheda Sonkh
Road, Police Station Highway, Mathura (Uttar Pradesh)
----Respondent
For Petitioner(s) : Mr. O.P. Mishra
For Respondent(s) : Mr. Maneesh Sharma
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
JUDGMENT RESERVED ON : 24/03/2022
JUDGMENT PRONOUNCED ON : March 31st, 2022
BY THE COURT:
1. This revision petition under Section 115 CPC has been filed by the
petitioner-non-applicant-husband (hereinafter `the husband') against the
order dated 1-12-2018 in Misc. Case No.12/2018 (CIS No.9/2018) passed
by Additional District Judge Laxmangarh, District Sikar allowing application
under Order 9 Rule 13 CPC and set aside the ex-parte divorce decree dated
14-2-2017 in Case No.278/2016, in favour of the respondent-applicant-
wife (hereinafter `the wife') in a case where ex-parte decree of divorce was
granted in favour of husband and against the wife.
2. Heard learned counsel for the parties, and perused the impugned
order dated 1-12-2018 passed by the trial court.
(2 of 7) [CR-69/2019]
3. Facts of the case are that the husband filed a divorce petition on 24-9-
2016 for dissolution of marriage with the applicant wife performed on 11-
3-2011 claiming that from their wedlock a son Ujjwal chaudhary was born
and due to disputes between husband and wife, on 3-4-2013 the wife left
matrimonial home and did not return thereafter. Therefore, he filed divorce
petition inter alia alleging therein about several misbehaviour of the wife.
The court on 2-1-2017 ordered for ex-parte proceedings against the wife
on the ground that on 24-7-2016 notices were sent to wife through
registered AD, and on filing Talvana on 19-12-2016, she was ordered to be
present in court, and when she did not remain present in court, on 2-1-
2017 exparte proceedings were ordered. Ultimately the divorce decree was
passed on 14-2-2017.
4. On coming to know about the divorce decree, the wife filed an
application for setting aside ex-parte decree and submitted that as claimed
19-12-2016, no such date was mentioned in the notice, sent through
registered AD. Their marriage was registered at Bharatpur, but no notice
through registry was reached at Bharatpur. The husband collusively with
post office of Laxmangarh shown to have sent notice at Bharatpur, while the
wife was residing at Mathura with her brother. From 22-11-2016 to 30-
11-2016 her parents were also not at Bharatpur. The husband has also filed
application under Section 9 of the Hindu Marriage Act, of which notices
were served on wife at Chaitanya Lok Colony, Mathura, to which she filed
reply on 27-8-2014. There were several other proceedings between
husband and wife, and in all such proceedings the address of the wife was of
Mathura, while malafidely the husband sent notice of divorce petition at
Bharatpur and got ex-parte order dated 2-1-2017 in his favour. In course
of several proceedings between husband and wife when a Panchayat
(3 of 7) [CR-69/2019]
meeting was held on 3-1-2018 at Pathaina, Bharatpur for compromise
between husband and wife, then the wife came to know about ex-parte
order dated 2-1-2017 and divorce decree dated 14-2-2017. Then she filed
application for setting aside the ex-parte decree.
5. The husband filed reply to application and opposing the application
on many grounds first time disclosed about his second marriage on 17-6-
2017, just after four months of the divorce decree dated 14-2-2017.
6. The trial court considering the report of General Post Office of
Bharatpur, which was obtained by the wife under Right to Information Act,
that no notice in name of wife-Kusum Singh was received by the Post Office
to be served Kusum Singh at Bharatpur and in view of the fact that husband
failed to prove residence of wife at Bharatpur and that in all other
proceedings wife's residence was proved of Mathura, the trial court vide
order dated 1-12-2018 set aside the ex-parte order dated 2-1-2017 as also
the decree of divorce dated 14-2-2017. Hence, this petition has been filed
by the husband impugning the order dated 1-12-2018.
7. Heard learned counsel for parties and perused the material available
on record.
8. Counsel for husband has vehemently opposed the impugned order
and submitted that the trial court while setting aside ex-parte decree has not
considered the fact that husband has already entered into second marriage
with Lajja Devi. Reliance has been placed on Karuna Kansal Vs. Hemant
Kansal [(2019)6 SCC 581], wherein first wife's belated application under
Order 9 Rule 13 CPC was dismissed on ground of limitation and in view of
the fact that husband had entered into second marriage upon expiring of
period limitation for appeal.
(4 of 7) [CR-69/2019]
9. Counsel for wife has supported the impugned order of trial court and
submitted that husband had collusively and mischievously obtained ex-
parte decree in his favour. Counsel submitted that when in all other
proceedings the address of the wife was shown to be at Mathura, the
husband has wrongly and miscellaneously mentioned the address of wife at
Bharatpur in divorce petition and as such exparte order was passed in his
favour, while he never tried to serve notice on wife. Not only this within just
four months of divorce decree he entered into second marriage without
disclosing this fact. The wife could get information about the ex-parte
divorce decree during a panchayat meeting held for compromise between
husband and wife. Counsel placed reliance on Naresh Chandra Agarwal Vs.
Bank of Baroda [2001)3 SCC 163] wherein Legal Representative of deceased
was admittedly working in another district at the relevant time, but notice
regarding impleadment of LRs address to his permanent residential address
was returned with endorsement "refused", held on fact, the outcome was not
a mere irregularity in service of summons but rather a case of non-service
of notice and application under Order 9 Rule 13 CPC was allowed. Reliance
has also been placed on Sushil Kumar Sabharwal Vs. Gurpreet Singh
[(2002)5 SCC 377] wherein the endorsement of containing the remark "no
witness available on the spot" also prima facie not found believable when
summon was sought to be served on defendant at his shop situated in a
locality where there were other shops and houses, and in view of non-
service of summons in accordance with the law ex-parte decree was held
liable to be set aside.
10. Having heard learned counsel for parties and perusing the material
available on record, the wife came to know about the ex-parte divorce
decree on 3-1-2018 and she filed the instant application on 22-1-2018
(5 of 7) [CR-69/2019]
along with an application under Section 5 of the Limitation Act. This court is
of the view that learned trial court has not committed any illegality in
allowing wife's application under Order 9 Rule 13 CPC, when she has
bonafidely and validly proved that no notice was served upon her at
Mathura, where she was residing along with her brother. Further at
Bharatpur also notices were sent when her parents at house during the
period of 22-11-2016 and 30-11-2016. Further more, as per report of
General Post Office of Bharatpur, which was obtained by the wife under
Right to Information Act, that no notice in name of wife-Kusum Singh was
received by the Post Office to be served Kusum Singh at Bharatpur. As such
the husband miserably failed to prove proper service of notice on wife and
malafide intention of husband is also proved by the fact that after the ex-
parte decree on 14-2-2017 he entered into second marriage within just
four months on 17-6-2017.
11. Judgment in case of Karuna Kansal (supra) relied upon by counsel for
husband does not help the husband, as in the said case the wife approached
the court with delay after coming to know about the second marriage of
husband. The first wife filed appeal assailing ex-parte decree for divorce
alleging malafides against husband and second wife. The present case is on
different footing no such circumstances are available. As far as the issue of
second marriage of husband is concerned, it is the situation is which has
been created by him, as immediately on obtaining ex-parte divorce decree
on 14-2-2017 he entered into second marriage on 17-6-2017, just within
four months.
12. While the instant case is of non service of wife as notices were
wrongly sent at Bharatpur while admittedly she was residing at Mathura as
is evident from other proceedings and notices were not properly served
(6 of 7) [CR-69/2019]
upon her, as in cases of Naresh Chandra Agarwal (supra) and Sushil Kumar
Sabharwal (supra). The wife has also not committed any further delay in
filing application under Order 9 Rule 13 CPC, as soon as she came to know
about the divorce decree on 3-1-2018, she immediately filed the application
for setting aside decree on 22-1-2018. Thus she has valid shown "sufficient
cause" for filing a belated application under Order 9 Rule 13 CPC seeking
setting aside of the ex-parte decree of divorce. In the present case no
malafides or negligence or deliberate delay in moving application under
Order 9 Rule 13 CPC by wife can be attributed. On the contrary, the action
of husband in effecting service of notices upon wife at the address where she
was not residing is doubtful and the action of the Family court of drawing
ex-parte proceedings against the wife without ensuring effective service of
notices on wife cannot be countenanced by this court, as such the same is
not liable to be affirmed. The trial court has rightly condoned the delay in
filing the application under Order 9 Rule 13 CPC and setting aside the ex-
parte decree.
13. The order impugned dated 1-12-2018 passed by the trial court is a
well considered order objectively analysing all facts/ evidence. Nothing
erroneous or illegal can even remotely be attributed thereto. There is no
material illegality or irregularity or jurisdictional error by the trial court in
setting aside ex-parte decree for divorce and allowing application under
Order 9 Rule 13 CPC and the impugned order does not call for any
interference within scope of Section 115 CPC. Accordingly, it deserves to be
upheld and it is so.
14. There is no force in the revision petition and the same is dismissed.
15. Record of the trial court be sent back.
(7 of 7) [CR-69/2019]
16. Both parties husband and wife are directed to remain present before
the trial court on May 16, 2022. In view of the fact that matters are pending
between husband and wife under provisions of Section 13 of the Hindu
Marriage Act, 1955, from 2016, the concerned trial Court is expected to
draw and conclude the proceedings taking into account the provisions of
Section 21-B of the Hindu Marriage Act, 1955.
17. Stay application, and other application(s), if any, also stand disposed
of.
(SUDESH BANSAL),J
Arn/13
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