AO/331/2022
2022 Latest Caselaw 3144 UK

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

        THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                               AND
         THE HON'BLE SRI JUSTICE RAMESH CHANDRA KHULBE


              APPEAL FROM ORDER NO. 331 OF 2022

                       26th SEPTEMBER, 2022

Between:

Mahendra Prasad Dwivedi                  ......          Appellant


and


Lajji Devi                               ......         Respondent

Counsel for the appellant : Mr. Navnish Negi, learned counsel

Counsel for the respondent : --

The Court made the following:

JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)

The present appeal under Section 19 of the

Family Courts Act, is preferred by the appellant-husband

to assail the order dated 25.08.2022, passed by the

Family Court, Kotdwar, Pauri Garhwal, in Misc. Criminal

Suit No. 02 of 2022, whereby the Family Court allowed

the application filed by the respondent-wife under

Section 5 of the Limitation Act as well as a second

application under Order 9 Rule 13 of the CPC, setting

aside the ex-parte divorce decree obtained by the

appellant-husband against the respondent dated

30.10.2021.

2) The parties were married on 19.10.1996.

They were living as husband and wife under the same

roof in Village Maanpur, Patti Sukhrow, Tehsil Kotdwar,

District Pauri Garhwal. While so living together as

husband and wife, the appellant filed the divorce petition

under Section 13(1)(ia) of the Hindu Marriage Act on the

ground of cruelty against the respondent vide

Matrimonial Case No. 05 of 2013, in the Court of the

Family Judge, Kotdwar, Pauri Garhwal. The memo of

parties / cause title of the said divorce petition disclosed

the address of both the parties as aforesaid, namely,

Village Maanpur, Patti Sukhrow, Tehsil Kotdwar, District

Pauri Garhwal. The parties were blessed with three

sons, namely, Deepak, Kulbhushan and Paras, who were

16 years, 14 years and 10 years old, when the divorce

petition was preferred in the year 2013. In the divorce

proceedings, the respondent-wife was treated as served

with the summons on the basis of the Process Server's

report which showed acknowledgement of the summons

by her, in her own hand. Since she did not appear to

contest the divorce proceedings, she was proceeded ex-

parte on 12.08.2013. The ex-parte divorce decree came

to be passed by the Family Court on 30.10.2021.

3) During the course of the pendency of the

divorce proceedings, the appellant did not inform the

Court of any alleged change of address of the

respondent to claim that she had moved out of her

matrimonial home. Thus, as per the record, she

continued to reside with the appellant even during the

pendency of the divorce proceedings under the same

roof.

4) Pertinently, even in the present appeal, the

address of both the parties is shown to be the same,

which shows that the respondent continues to reside in

her matrimonial home even now.

5) After the appellant had obtained the ex-parte

decree of divorce on 30.10.2021, the respondent-wife

moved the aforesaid two applications on 23.05.2022 -

one under Section 5 of the Limitation Act to seek

condonation of delay in moving the second application

under Order 9 Rule 13 CPC, and the other, to seek the

setting aside of the ex-parte decree of divorce. The

respondent claimed that the conduct of the appellant in

relation to other woman gave rise to a controversy

between the parties and, at that stage, the appellant

disclosed to the respondent that he had already obtained

a decree of divorce against her. It is only thereafter,

that she moved the aforesaid two applications on

23.05.2022. In the application, the respondent stated in

paragraph 8, as follows:

"fd i=koyh ij tks leu dh izfr [email protected] dks izkIr gksuk n'kkZ;k gS og [email protected] }kjk izkIr ugh gS cfYd foi{[email protected] us gh [email protected] ds gLrk{kj cukdj izkIr dh gS D;ksfd foi{[email protected] o [email protected] ,d gh ?kj esa jgrs gSa rFkk i=koyh ij tks iks0vks0 dh jlhn layXu gS og Hkh foi{[email protected] }kjk gh izkIr fd;k x;k gksxk bl rjg foi{[email protected] us [email protected] dks vU/kdkj esa j[kdj ekuuh; U;k;ky; dks xqejkg dj ,d i{kh; rykd dh fMdzh izkIr dh gS tks [kkfjt gksus ;ksX; gSA"

6) The application was contested by the appellant

by filing his reply / objection, wherein he stated in

paragraph 5, as follows:

";g fd ekuuh; U;k;ky; }kjk izkFkZuh dks ctfj;s foi{[email protected] [email protected] iSjoh dh x;h Fkh tksfd dkxt la[;k 9d gS ftl ij izkFkZuh yTth nsoh ds gLrk{kj cus gSa rFkk yTth nsoh ij rkehyk Ik;kZIr gS rFkk ekuuh; U;k;ky; ds rkehyh okgd dh vk[;k ifjyf{kr gSA bl izdkj izkFkZuh dks ekuuh; U;k;ky; ds rkehyh okgd }kjk fnaukd 11.05.2013 dks okn dh iw.kZ tkudkjh izkIr gks x;h Fkh izkFkZuh dks okn esa mifLFkr gksdj viuk [email protected] nsus dk Ik;kZIr le; Fkk fdUrq izkFkZuh us tkucqtdj ckotwn tkudkjh ekuuh; U;k;ky; esa mifLFkr ugh gqbZ vkSj uk gh oknh ds okn dk dksbZ [k.Mu fd;k ftl dkj.k ekuuh; U;k;ky; }kjk fnaukd 12.08.2013 dkas ewy okn esa ,d i{kh; lquokbZ ds vkns'k ikfjr fd;s x;sA"

7) In the impugned order, in paragraph 7, the

Family Court observed as follows:

"Learned counsel for the applicant argued that the applicant had not received the summons sent by registered post and the summons paper number 9A which the opposition is asking to be served on the petitioner, was also got signed by the applicant saying that in any case he has to testify and kept the paper with him and the applicant never got to know about the pending divorce case against her. In the light of the above discussion in this application, it has been found that the opposition is also residing with the applicant, therefore, in view of the relationship and mutual trust between the husband and wife, the opposition cannot ask any of his/her wife/appellant. The fact of getting the paper signed also cannot be denied. Therefore, the petitioner not having the information of suit 05/2013 in advance also appears to be justified by the statement made by the applicant. In addition to the applicant, if the summons has been sent by post, it is also shown from the postal receipt paper number 12A, to be sent to the joint residence of the applicant and the opposition, in such a situation, in view of the conduct of the opposition, there is a strong possibility that the said post was sent by the opposition himself and has been received by him, and the applicant does not have any information regarding the said registered post, because no copy of the acceptance of the said registered post has been received on record, which should show that the said registered post has been received by the applicant."

8) We may observe that the aforesaid quotation

is from a translation of the impugned order produced by

the appellant, and is not the original text from the

impugned order itself.

9) Paragraph 7 from the impugned order, which

is in Hindi language, reads as follows:

"izkfFkZuh ds fo}ku vf/koDrk us rdZ fn;k fd izkfFkZuh dks iathd`r Mkd ls izsf"kr leu izkIr ugh gqvk vkSj tks leu dkxTk l[;k d9 foi{kh] izkfFkZuh ij rkehy gksuk dg jgk gS ml ij Hkh foi{kh us izkfFkZuh ls ;g dgdj gLrk{kj djok;s dh fdlh ekeys esa xokgh nsuh gS vkSj ml dkxt dks vius ikl j[k fy;k vkSj izkfFkZuh dks mlds fo#) yfEcr rykd ds eqdnesa dh dHkh tkudkjh ugha gks ik;hA bl izkFZkuk i= esa mij dh x;h ifjppkZ ds izdk'k esa ;g rF; ik;k tk pqdk gS fd foi{kh Hkh izkfFkZuh ds lkFk fuokl dj jgk gS] vr% ,sls esa ifr&ifRu ds fj'rs ,oa vkilh fo'okl dks ns[krs gq, foi{kh }kjk viuh [email protected] izkfFkZuh ls fdlh dkxt ij gLrk{kj djkus ds rF; ls Hkh bUdkj ugh fd;k tk ldrk gSSA vr% izkfFkZuh dks oSokfgd okn la[;k [email protected] dh tkudkjh iwoZ esa ugh gksuk Hkh izkfFkZuh }kjk izdV fd;s x;s dFku ls U;k;ksfpr izrhr gksrk gSSA blds vfrfjDr izkfFkZuh dks tks leu Mkd }kjk izsf"kr fd;k x;k gS og Hkh izkfFkZuh o foi{kh ds l;qDr fuokl djus okys irs ij izsf"kr djuk Mkd jlhn dkxt la[;k 12d ls nf'kZr gS] ,sls es foi{kh ds vkpj.k dks ns[krs gq, bl rF; dh izcy laHkkouk gS fd mDr Mkd foi{kh }kjk Lao; izkIr dj yh x;h gks vkSj izkfFkZuh dks mDr iathd`r Mkd ds lac/k esa dksbaZ tkudkjh u gks] D;ksafd mDr iathd`r Mkd dh dksbZ izkfIr Lohd`fr dh izfr vfHkys[k ij izkIr ugh gS] ftlls izdV gks fd mDr iathd`r Mkd izkfFkZuh }kjk izkIr dh x;h gksA"

10) The submission of learned counsel for the

appellant is that the Family Court has, while passing the

impugned order under Order 9 Rule 13 CPC, gone

beyond the pleadings of the parties. It was the case of

the respondent-wife that she had not signed the

summons, and that her signatures on the summons had

been forged by the appellant. However, in paragraph 7

of the impugned order, the Family Court has proceeded

on the basis that the signature of the respondent-wife

had been obtained by the appellant by misrepresenting

to her that her signatures are required in relation to

some case without disclosing anything further.

Therefore, it is argued, that the impugned order suffers

from a patent illegality and deserves to be recalled. He

further submits that since the respondent had been

proceeded ex-parte way back on 12.08.2013, after due

notice of summons upon her, her applications under

Section 5 of the Limitation Act and under Order 9 Rule

13 CPC should have been dismissed.

11)       We   have     heard   learned     counsel   for   the

appellant and perused the record.


12)       We may observe that when the appeal was

taken up by us for hearing on 23.09.2022, after hearing

counsel for the appellant, we had expressed the, prima

facie, view that the appellant appears to have played

fraud upon the respondent, and we also informed

learned counsel that we would be inclined to dismiss the

appeal - in case, we do not agree with the submissions

advanced by the counsel for the appellant, with exemplary

costs in the light of the appellant's conduct. Counsel for

the appellant had taken an adjournment to take

instructions, and the matter was posted for today. Today,

the appellant is also present in Court, and in our presence,

counsel for the appellant has again taken instructions, and

the appellant insists that the present appeal be decided on

merits. Accordingly, we proceed to decide the present

appeal.

13) It is not in dispute that the parties, who were

married way back on 19.10.1996, continued to live as

husband and wife even when the divorce petition was

preferred by the appellant on 04.01.2013. The appellant,

while filing the petition and providing his own address and

the address of his wife, i.e., the respondent, did not claim

that they are residing separately, in different portions of

their house. The address of both the parties was the same

as taken note of hereinabove. Thus, it is clear that the

divorce petition was preferred by the appellant while living

with the respondent as her husband. The conjugal

relationship between the parties, therefore, continued to

be maintained as before, even after filing of the petition.

It would, therefore, naturally follow that there would have

been condonation of the alleged matrimonial misconduct of

the respondent, as the parties continued to reside under

the same roof as husband and wife, even after the filing of

the divorce petition. Not only this, even after obtaining

the ex-parte divorce on 30.10.2021, the parties continued

to live under the same roof as husband and wife, at least

till the respondent learnt of the ex-parte decree against

her dated 30.10.2021.

14) The three sons of the parties, who were 16

years, 14 years and 10 years in the year 2013, when the

divorce petition was preferred, would have all attained

majority when the application of the respondent-wife to

seek the setting aside of the ex-parte decree was moved.

The Family Court observes in the impugned order, that

none of them were produced before the Court by the

appellant to establish that the parties were not residing as

husband and wife after the filing of the divorce petition.

Pertinently, the case of the respondent, in her application

was that she was residing with the appellant and her

children in the same house as a single family. This fact

was not even denied by the appellant in his reply to the

respondent's application under Order 9 Rule 13 CPC.

15) So far as the submission of learned counsel for

the appellant premised on the averment made in

paragraph 8 of her application under Order 9 Rule 13 CPC

is concerned, we do not find any merit in the same. This is

for the reason that, in the normal course, while living as

husband and wife, there is complete and implicit faith that

the two spouses repose in each other, and are expected to

repose in each other. Therefore, if the husband were to -

casually, ask his wife to sign a particular document, she

would unhesitatingly sign the same without even enquiring

as to what is the document on which her signatures are

being obtained. She would not even care to remember the

fact that she has actually signed a document on the

instructions of her husband. It is in this context that the

averment made in paragraph 8 of her application has to be

viewed. When she made the averment, she was certain

that she had not signed any summons in a divorce case

initiated against her by the husband. The appellant,

however, seems to think that he can get away with the

aforesaid fraudulent conduct by clutching on to her

averment made in paragraph 8 of her application, and by

insisting that the summons in the divorce proceedings

were actually signed by her. Even if she did actually sign

the summons, the same is neither here nor there, as he

continued to cohabit with his wife, i.e., the respondent by

treating his wife all through - before filing the divorce

petition; after filing the divorce petition, and; even after

obtaining the ex-parte divorce decree.

16) It appears that the Family Court has taken note

of the aforesaid circumstances while passing the impugned

order, and the observation made in paragraph 7 of the

impugned order, stand from a correct understanding of the

factual situation, considering the fact that the parties were

residing as husband and wife, and also keeping in view the

social context in which Indian family exist - where the

spouses, particularly the wives, exhibit implicit faith and

trust in their husbands.

17) The appellant, by his aforesaid conduct, has

gravely undermined the institution of marriage which is

sacrosanct amongst the Hindus - the religion to which the

parties belong. If he had to obtain divorce, he should have

fairly and squarely separated from his wife before filing the

divorce petition, and he should not have been living with

her. However, he continued to live with her as her

husband even after filing of the divorce petition, and

obtained the ex-parte divorce. The only conclusion that

we can draw is that the appellant misled his wife into, and

contrived to obtain her signatures on the summons and

get the Process Server's report to show that she had been

served in the divorce proceedings, while she continued to

live with the appellant as his wife in complete ignorance of

the said developments. If there was any truth in the case

of the appellant, he would have produced his children to

support his plea that he was not residing with the

respondent as her husband throughout the proceedings,

and even after obtaining the ex-parte divorce decree.

18) We, therefore, dismiss this appeal with costs

quantified at Rs.1,00,000/- (Rupees one lac only). Out of

the said costs, Rs. 50,000/- shall be paid to the

respondent-wife, and the remaining Rs.50,000/- shall be

deposited with the State Legal Services Authority within

four weeks. In case, the appellant does not deposit the

said costs, his divorce petition, which has been restored,

would be liable to be dismissed for non-prosecution.

Stay Application (IA No. 01 of 2022) also stands

disposed of.

________________ VIPIN SANGHI, C.J.

___________ R.C. KHULBE, J.

Dt: 26th SEPTEMBER, 2022 Negi