Sunday, November 4, 2012

Setting Aside Ex-Parte Divorce Decree



Setting Aside Ex-Parte Divorce Decree

ORISSA HIGH COURT
Siddharth Dixit vs Smt. Sujata Dixit on 11 August, 2010
L.MOHAPATRA, J & C.R.DASH, J.
W.P.(C) NO.14412 OF 2008 ( Decided on 11.08.2010).
SIDDHARTH DIXIT ........... Petitioner.
.Vrs.
SMT. SUJATA DIXIT ............ Opp.Party.
CIVIL PROCEDURE CODE -1908(ACTNO. 5 OF 1908) ORDER-9 RULE-13
For Petitioner - M/s. Yeesan Mohanty, B.C.Mohanty & G.N.Dash.
For Opp.party - M/s. S.K.Padhi, M.Padhi, G.Misra, & A.Das.
M/s. G.P.Dutta, M.Dutta, A.Ghose, S.K.Mohanty
& B.K.Sahoo.
L.MOHAPATRA, J. This writ application is directed against the order dated 2.9.2008 passed by the learned Judge, Family Court, Rourkela in Misc.Case No.5 of 2008 filed under Order 9, Rule 13 of the Code of Civil Procedure( in short 'C.P.C.') for setting aside the ex parte decree of divorce.
2. The petitioner and the opposite party got married on 18.2.1991 as per Hindu rites and customs at Kolkata. Both of them were blessed with two children, a son namely, Siddhant in the year 1994 and a daughter namely, Shraddha in the year 1999. There were differences between both of them during this period and subsequently the relationship became such that they had to remain away from each other. The petitioner thereafter filed Civil Proceeding No.227 of 2005 in the court of the learned Judge, Family Court, Rourkela seeking for divorce. Notice was issued to the opposite party but, the same could not be served. Thereafter, steps for service of notice as provided under Order 5, Rule 20 C.P.C. were taken and in spite of paper publication, the opposite party having not appeared in the case, an ex parte
decree of divorce was passed on 9.3.2006. After waiting for the appeal period, the petitioner contracted second marriage with another woman. The opposite party coming to know about the ex parte decree, filed Misc.Case No.5 of 2008 before the learned Judge, Family Court, Rorurkela under Order 9, Rule 13 C.P.C. to set aside the ex parte decree. In the impugned order, the learned Judge, Family Court having set aside the ex parte decree, this writ application has been filed challenging the same.
3. As it appears from the discussion made by the learned Judge, Family Court in paragraphs 3, 4, 5 and 6 of the impugned order, after filing of the Civil Proceeding, notice was issued to the opposite party, who was staying at Kolkata then. Notice could not be served due to want of time and an application was filed by the petitioner for substituted service under Order 5, Rule 20 C.P.C.. The said petition having been allowed, notice was published in the 'Times of India'. In spite of publication of notice, opposite party having not appeared, an ex parte decree was passed by the court. In the application filed under Order 9, Rule 13 C.P.C., the learned Judge, Family Court came to hold that there was no material before the court to come to a conclusion that the opposite party was avoiding service of notice on her and in absence of such a finding, the application filed by the petitioner under Order 5, Rule 20 could not have been allowed and, therefore, the substituted service made by the petitioner by way of paper publication cannot be held to be a valid service of notice and, accordingly, the ex parte decree of divorce is liable to be set aside.
4. Shri Yeesan Mohanty, learned Senior Counsel appearing for the petitioner assailed the impugned order stating that after the ex parte decree was passed, the petitioner waited for the appeal period to be over and, thereafter married for the second time. Under these circumstances, application under Order 9, Rule 13 C.P.C. could not have been allowed and the only course open to the opposite party was to pray for permanent alimony. In this connection, reliance is placed by the learned Senior Counsel on a decision of the Allahabad High Court in the case of S.P.Srivastva Vrs. Smt. Premlata Srivastava reported in A.I.R. 1980 Allahabad 336. In the said reported case, the husband filed a suit for divorce under Section 13 of the Hindu Marriage Act. The suit was decreed ex parte on 2.6.1973. The wife filed an application under Order 9, Rule 13 C.P.C. on 15.4.1976 for setting aside the ex parte decree on the allegation that she had never been served with summons on divorce petition. The husband had contracted a second marriage with another woman on 14.4.1976. The trial court having allowed the application filed by the wife under Order 9, Rule 13 C.P.C., the matter was brought before the High Court. The High Court on consideration of different orders passed by the trial court came to a finding that there were some irregularities in service of summons but that would not be a ground for setting aside the ex parte decree and allowed the revision.
5. Though the above decision is silent about the submission of Shri Y. Mohanty, learned Senior Counsel for the petitioner that the only option available to the opposite is to claim for permanent alimony, another decision of Rajasthan High Court supports such a submission. In the case of Surrender Kumar Vrs. Kiran Devi reported in AIR 1997 Rajasthan 63, it was held that after an ex parte decree of divorce is passed, if the husband has contracted a second marriage after expiry of appeal period, the petition filed under Order 9, Rule 13 C.P.C. at the instance of the wife is not maintainable and the wife can file an application under Section 25 of the Hindu Marriage Act claiming permanent alimony.
6. Shri Dutta, learned counsel appearing for the opposite party submitted that the first notice issued by the court admittedly was not served on the opposite party. The subsequent publication of notice in the 'Times of India' in pursuance of an order passed by the court for substituted service was on a date on which the opposite party was in China and, therefore, had no scope to know about publication of such notice. This submission of the learned counsel, Shri Dutta was seriously opposed by the learned counsel appearing for the petitioner. There is no material before us to show that on the date of publication of notice in the 'Times of India', opposite party was in China. This point was also never taken before the trial court and had such a point been taken, the parties would have been directed to adduce evidence in this regard. Therefore, we decline to entertain a disputed question of fact raised for the first time in this writ application.
7. So far as finding of the learned Judge, Family Court in setting aside the ex parte decree is concerned, we are of the view that such a finding is not sustainable. Admittedly, notice could not be served on the opposite party on the first occasion due to want of time. Therefore, an application was filed by the petitioner under Order 5, Rule 20 C.P.C. and permission having been granted by the court, notice was published in a widely distributed English Newspaper. The court being satisfied with regard to compliance of requirement of Order 5 Rule 20 C.P.C., had permitted the petitioner to take steps for substituted service by way of publication in a widely distributed English Newspaper. Therefore, it is not open for the trial court now to say that grant of permission to the petitioner at that stage was not justified. The ex parte order has not been set aside in any other ground by the trial court in the impugned order.
8. For the reasons stated above, we are of the view that the ground on which the trial court has set aside the ex parte decree is not sustainable and, accordingly, the impugned order is set aside. The petitioner may approach the trial court in an application under Section 25 of the Hindu Marriage Act for permanent alimony in view of the changed circumstances and in the event, such an application is filed, the trial court shall permit the parties to adduce evidence and determine the permanent alimony on the basis of such evidence.
The writ application is accordingly disposed of.
Writ petition disposed of

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