IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No. 3767 of 2011.
Date of decision: March 19, 2013.
Rajender Kumar …Respondent
CORAM: HON’BLE MR. JUSTICE SURYA KANT HON’BLE MR. JUSTICE R.P.NAGRATH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Vikas Lochab, Advocate,
for the appellant.
Mr. Navjot Singh, Advocate,
for the respondent.
S URYA KANT, J .
The wife is in appeal before us against the judgment and order dated 09th March, 2011 whereby her application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure to set aside the order dated 12th February, 2009 of proceeding ex-parte against her and the consequential judgment and decree of divorce dated 01st April, 2009, has been dismissed by the Family Court, Faridabad.
. The appellant and the respondent got married on 19th February, 2007 and a male child was born out of the wedlock on 23rd July, 2008. The appellant – wife was allegedly thrown out of her matrimonial home in the 2nd week of July, 2008 but pursuant to a compromise reached through the intervention of the Panchayat, which was duly executed on a stamp paper on 23rd November, 2008, the appellant was brought back to her matrimonial home where she continued to stay with the respondent till 20th April, 2009.
. The respondent-husband however, filed a petition for divorce under Section 13 of the Hindu Marriage Act, 1955 in which the appellant-wife was shown to be residing at her parental house in Kisan Mazdoor Colony, Old Faridabad, though according to her, she was actually living with the respondent. On the strength of the wrong address, the appellant-wife was shown to have refused to accept the notice and was proceeded against ex-parte on 12th February, 2009 with a resultant ex-parte decree of divorce passed on 01st April, 2009.
. The appellant-wife moved an application on 01st June, 2009 to recall the above stated ex-parte orders averring that on 25th May, 2009 her father received a telephonic call on his mobile phone from the respondent-husband asking him to take the appellant back and during the conversation, the respondent disclosed that the appellant was no longer his wife and that he had already contracted second marriage with another girl. On the very next day, i.e., 26th May, 2009, some police-man also called the appellant’s father on the latter’s mobile phone advising him not to harass the respondent husband who had obtained an ex-parte decree of divorce on 01st April, 2009 and claimed to have re-married.
. Appalled, the appellant and her father then rushed to the Court and found out about the judgment and decree dated 01st April, 2009 and applied for its certified copy on 28th May, 2009 and on receipt of the same on the next day, i.e., 29th May, 2009, the application to set aside the order of ex-parte dated 12th February, 2009, was moved.
. The appellant averred in her application that she was proceeded against ex-parte on the basis of a report of some Munadi in the locality and that of the Process Server on the summons issued on 15th October, 2008, which was effected or sent at an address where she was not residing at the relevant time. The precise allegation of the appellant-wife was that the ex-parte decree of divorce was obtained through fraudulent means.
. The respondent-husband contested the above stated application and claimed that it had become infructuous as after the grant of ex-parte decree of divorce, he got re-married to one Kamla on 14th May, 2009 and both of them were now living together as husband and wife and that the appellant would gain nothing even if the ex-parte judgment and decree were to be set aside.
. The Family Court framed the following issues on the basis of pleadings:-
. Whether there are sufficient grounds to set aside the ex-parte order dated 12.02.2009 and judgment and decree thereof dated 01.04.2009, as alleged? OPA.
. Whether the application is time barred? OPR
. Whether the application is not maintainable, as alleged? OPR.
. The appellant appeared as AW1 and tendered her affidavit in evidence. She also produced the Compromise Deed, [Ex.A1] besides the evidence of Ramji Lal – her father [AW2] and one Ramesh as AW3. The respondent – husband also appeared as RW1 and produced Bal Kishan and Nitin Kumar, RW2 and RW3 respectively, besides documents [Ex.R1 to Ex.R4] in his evidence.
. The Family Court discarded the Compromise Deed [Ex.A1] observing that it is not signed by the appellant [wife] or the respondent [husband] though it was signed by Chet Ram [father of the respondent], Bhoja Ram and Brij Mohan etc. who took the appellant – wife to her matrimonial home. The Family Court has further held that the appellant was duly served but she refused to accept the notice, hence the ex-parte proceedings were rightly held against her. Consequently, the application has been dismissed.
. The aggrieved wife has preferred this appeal. The records were requisitioned and the same have been perused.
. At the outset, it deserves mention that the respondenthusband could be served in this appeal only after great efforts as he kept on evading the service. On 28th January, 2013, the respondent
put in an appearance through his counsel, who in turn, reiterated the old plea that after the passing of the ex-parte decree dated 01st April, 2009, the respondent has performed second marriage on 14th May, 2009. Since the said plea has no bearing on the merits of the appeal, we viewed it seriously and directed the respondent-husband to firstly pay litigation expenses to the appellant. The matter was thereafter adjourned to enable the respondent to pay the litigation expenses but he did not turn up, hence bailable warrants were issued to secure his presence. The bailable warrants also could not be executed as the Chief Judicial Magistrate, Faridabad sent a report dated 14th March, 2013 to the following effect:-
“I have the honour to submit that vide letter under reference bailable warrants along with a copy of order dated 11.2.2013 passed by Hon’ble Punjab & Haryana High Court, Chandigarh in FAO No. 3767-2011 [O&M] was received in this court for executing the same upon respondent Rajender Kumar. Upon which bailable warrants against respondent Rajender Kumar was issued and were sent to concerned Police Station for execution, but the same were received back unexecuted with the report that at the given address Chet Ram father of respondent Rajender met who reported that they have disinherited Rajender from their properties and whereabouts of the respondent is not known. Report of executing official is attached with for kind perusal of Hon’ble High Court”.
The respondent, however, has not paid the litigation expenses to the appellant, though he kept on changing his counsel on every date till the hearing of appeal on merits.
. The solitary question that arises for consideration is whether the appellant-wife was duly served in the divorce petition filed by the respondent-husband?
. While the appellant stepped into the witness box and has produced her father as a witness, besides bringing on record the Compromise Deed [Ex.A1] so as to establish that she and the respondent were very much living under the same roof at the time when the divorce petition was filed or the report regarding her refusal to accept the notice was secured, the respondent – husband has produced the Process Server – Bal Kishan [RW2] to prove the factum of effecting Munadi for the purpose of service on the appellant-wife.
. With a view to find out whether the appellant was living with the respondent at the relevant time, it is significant to refer the Compromise Deed [Ex.A1] dated 23rd November, 2008 written on a Stamp Paper in a meeting presided over by the Sarpanch of the village. The document is duly thumb marked by the father of the respondent [Chet Ram] as well as his uncle [CHACHA] – Bhoja Ram, besides two other witnesses. The Compromise Deed recites that Chet Ram and Bhoja Ram have undertaken that hitherto Saroj [appellant] shall not be harassed nor shall there be any complaint of any mis-behaviour and they shall be fully responsible for the same. It is expressly recorded that the signatories to the compromise were taking Saroj “along with them” on that day i.e., 23rd November, 2008 and that in future they shall not give any chance of any complaint.
. The parties belong to the poor strata of society with rural back-ground, where resolution of such like matrimonial disputes through the forum of Panchayat is very common. Where the girl is
being subjected to cruelty and harassment by her husband, it is too obvious that she or her parents would not agree to rejoin the matrimonial home unless the respectable and responsible family
members, particularly the elders upon whom the husband depends, undertake the moral responsibility of good behaviour. The respondent – husband has been admittedly living in a joint-family along with his parents as he has no independent or separate house of his own. The father and uncle of the respondent came forward to confess maltreatment meted out to the appellant in the past and persuaded her to join her matrimonial home with an assurance that she shall not be subjected to any physical or mental harassment in future. The father and uncle of the respondent have not come forward to deny their thumb impressions on the Compromise Deed. It is pertinent to mention here that the execution of the Compromise Deed was duly disclosed by the appellant-wife in the very first opportunity, namely, in Para No. 3 of the application dated 01st June, 2009 and its execution has been duly proved by her. It is most unfortunate that the Family Court without taking notice of the social back-ground of the parties, has mechanically discarded this material piece of evidence only because the document was not signed by the appellant or the respondent-husband. The Compromise Deed pertains to the social and moral commitment and most materially to establish the appellant’s abode at the relevant time. It was not an agreement transacting some “movable property” for which signatures of the parties could be needed to establish it to be a binding contract. Was it not an open admission of prolonged harassment meted out to the appellant, not by any stranger but by her own father-in-law? The acknowledgment of the compromise by the father and other family members of the respondent was more significant than its acknowledgment by the respondent. From the statement of the appellant and her father and the repeated solitary defence plea taken by the respondent-husband that he has already performed the second marriage, we are fully satisfied that the appellant was very much living with her husband at the time when fraud was played on her by the respondent by providing wrong address regarding her and by procuring a refusal report, apparently in collusion with the Process Server.
. As regard to the so-called Munadi effected to serve the appellant through alternative mode, suffice it would be to reproduce the cross-examination of Bal Kishan, Process Server [RW2] which reads as follows:-
“The munadi was affected in the area of Kisan Majdoor Colony. There was no house number given in the summons so I can not say whether the applicant was residing in the said area at that time or not. The munadi through beat of drum was affected at about 12.00 O’ clock. I do not remember if Rajender Kumar respondent in the present proceedings was present there or not. A copy of the munadi proceedings was affixed in the area of Kisan Majdoor colony. I do not know the number of the building upon which this affixation was done. It is incorrect that the entire proceedings are fake and prepared at the behest of Rajender Kumar”. [Emphasis applied].
. There was, thus, no House Number mentioned in the summons nor was it known that the appellant was residing in that area. The Process Server also does not know the number of any building where the affixation took place. If this kind of ‘Munadi’ is conducted in a sub-Urban area like the Kisan Mazdoor Colony without making a reference to any house number, we are aghast to imagine the havoc being played by the Process Serving Agency, who in a way has become instrumental in victimizing the innocent unserved parties.
. Since the respondent-husband is thriving upon the second marriage said to have been performed by him on 14th May, 2009, we have also examined the ‘marriage certificate’ [Mark A] even though it is inadmissible in evidence. The Certificate has been issued by one ‘Arya Samaj Vedic Marriage Mandal’ which is stated to be a registered Society. The respondent himself has admitted in his statement that neither his own nor that of the girl’s parents were present at the time of the said marriage nor any rituals were performed. The manner in which the Certificate has been issued suggests that the Society is indulging in mal-practice of issuing fake Marriage Certificates for extraneous considerations. There was no reason at all for the Family Court to be influenced by this kind of alien factors.
. From the above discussion, it clearly emerges out that the appellant was never served in the divorce petition and the notice was deliberately got issued at a wrong address where she was not residing at the relevant time. The report was procured apparently in collusion and connivance with the Process Serving Agency and by playing fraud upon the appellant. Consequently, the appeal is allowed, the order dated 09th March, 2011 is set aside and while accepting the application under Order 9 Rule 13 read with Section 151 CPC moved by the appellant-wife, the ex-parte order dated 12th February, 2009 as well as the ex-parte judgment and decree of divorce dated 01st April, 2009 are set aside. The appellant is held entitled to costs of `10,000/- which if the respondent fails to pay on the first date of appearance before the Family Court, lawful coercive action shall be taken to recover the same.
. The parties are directed to appear before the Family Court at Faridabad on 08th April, 2013. The Family Court shall immediately determine the maintenance pendente-lite and ensure its actual payment to the appellant – wife before proceeding with the case on merits.
. We can not refrain from observing that this is not just a stray case where we have come across such casual and mechanical approach adopted firstly by the learned Additional District Judge who passed the ex-parte decree and then by the Family Court in declining to set aside the same. Several appeals, all by wives, have unfolded the story of unbearable hardship caused to them due to lack of sensitivity on the part of the Presiding Officers and the failure of an administrative control over the Process Serving Agencies. While there can be several means of affecting service on a party to the satisfaction of the Court, the old and obsolete methodology of conducting a Munadi [which is seldom conducted] is being followed as a rule of convenience. We are yet to come across a case where the hapless wife has been awarded adequate litigation expenses on the date of her appearance or within some reasonable period without realizing the expenses incurred on every step. The litigation expenses even if awarded are also nothing but a mere lip service, completely over-looking the prevailing fee structure of the Bar or the other actual expenses. No coercive steps are being taken for the recovery of maintenance pendente-lite or the maintenance awarded under Section 125 Cr.P.C., leaving the hapless wives at the mercy of God. Such like attitude of the Courts, especially the Family Courts, is totally unacceptable and such dismal performance can never achieve social justice. We are constrained to observe and remind the need of a humane approach to empathize with the plight of these silenced victims. We accordingly direct the Registrar General of High Court to circulate this order to all the District & Sessions Judge[s] and the Presiding Officers of the Family Courts in the States of Punjab, Haryana and U.T., Chandigarh, for necessary compliance.
. Disposed of. Dasti.
19th March, 2013.