Topic: Smt.Shalini Keshri vs Mintu Keshri / Ex-Parte Divorce Decree

Smt.Shalini Keshri vs Mintu Keshri
High Court 0f Jharkhand At Ranchi F.A. No. 42 of 2009

Ex-Parte Divorce Decree

7/ 06.01.2010 Heard the counsel appearing for the parties and with their consent this appeal is disposed of at the stage of admission. The appellant-wife has assailed the ex-parte judgment and decree passed by the Principal Judge, Family Court, Jamshedpur in Matrimonial Suit No. 161 of 2007 whereby he has decreed the suit field by the respondent for declaring the marriage as nullity. The main ground of challenge of the ex parte decree by the appellant is that notice in the suit was not properly and validly served. Learned counsel appearing for the appellant submitted that the respondent hurriedly obtained the ex-parte decree from the court below and got married immediately after expiry of six moths. For the purpose of satisfying ourselves with regard to valid service of notice, the Lower Court Record was called for. From perusal of the L.C. Record, it appears that the application under Section 12 of the Hindu Marriage Act was filed by the respondent on 2.7.2007 and was registered as Matrimonial Suit No. 161 of 2007. On the next date I.e. on 7.07.2007, the court below perused the Sherishedar report and admitted the suit and adjourned the case on 28.08.2007 with a direction to the respondent-husband to file requisites for service of notice. Although notices sent by ordinary process were not served, the court below on 28.8.2007 ordered for publication of notice in the local newspaper. For better appreciation the order passed by the Principal Judge, Family Court, Jamshedpur on 7.07.2007, 9.07.2007 and 28.8.2008 are reproduced herein below:

7.7.2007 Petitioner is absent but attendance has been filed through counsel. Heard on the point of admission. Perused the report of the Sherishtadar. "The petition is in order." Therefore this case been admitted.

Put up on 28.8.2007 for appearance of the respondent. Petitioner to file process fee, requisites afterward issue notice upon

respondent.

9.7.2007 Process fee along with requisites has been filed on behalf of the applicant. Office to issue notice upon the O.P.

28.8.2007 Applicant is present and file attendance along with a petition stating therein for publication of notice in daily newspaper on the cost of petitioner.

Put up on 22.9.2007 for appearance of

respondent. Applicant is directed to file requisites within a week."

From the orders quoted herein above, it is evidently clear that notices were not validly served upon the appellant. It is well settled that service of notice by publication in the newspaper is to be taken as a last recourse only after notice by ordinary process and registered post could not be served. Before passing order for service of notice by publication in the newspaper the court has to record reasons that the defendant keeping out of the way for the purpose of avoiding service and therefore it is not practicable to serve notices by ordinary process. The Principal Judge, Family Court (Mr. Anil Kumar Choudhary) either has no elementary knowledge of the procedure for service of notice or he has hurriedly passed the order for the reasons best known to him. Particularly in matrimonial matter, court should be very cautious and vigilant in the matter of service of notice.

Be that as it may, since the notices were not validly served, the ex-parte decree cannot be sustained in law. For the reasons aforesaid, this appeal is allowed and ex- parte decree passed by the court below is set aside and the matter is remitted back to the Principal Judge, Family Court, Jamshedpur to hear the matter afresh. The appellant-wife is at liberty to file written Statement and contest the suit.

Learned counsel appearing for the appellant submitted that the appellant who is present in court is always ready and willing to live with the respondent and therefore, she must get maintenance pendente lite.

In our view, the appellant may file application in the court below for grant of maintenance pendente lite which shall be considered in the court below.

(M. Y. Eqbal, J)

( Pradeep Kumar, J)

Alankar/