Delhi High Court: In an appeal filed by Seema Devi (appellant-wife) assailing the order dated 03-02-2006 wherein the Additional District Judge, Delhi has dismissed the application filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC), seeking setting aside of the ex-parte judgment and decree of divorce passed between the parties on 14-05-2003. A Division Bench of Sanjeev Sachdeva and Vikas Mahajan, JJ. upholds the divorce decree as the second marriage of the husband (respondent) is legal due to the appeal being filed after the limitation period, thus making the impugned decree final in view of Section 15 of the Hindu Marriage Act (HMA).
The marriage between the parties was solemnized and a girl child was born from the wedlock, however, due to disputes and differences between the parties, the husband filed a divorce premised on the grounds of cruelty and desertion. The summons were issued to the wife but she refused to accept the same and thus, due to non- appearance the wife proceeded ex parte in the divorce proceedings which was thereby granted.
After about 18 months, the wife filed an application under Order IX Rule 13 CPC alleging that the summons issued by the Court in the divorce petition was neither tendered to her nor she refused to accept the same. She further added that she received a divorce decree only after a copy of the decree was filed for maintenance proceedings. The husband filed his reply, pleading that his wife knew of the divorce petition filed by him in Delhi and that he has already re-married to Smt. Sanju Devi.
Additional District Judge, Delhi vide impugned order dismissed the application of the wife under Order IX Rule 13 CPC on the ground that the wife was aware of the divorce petition pending in the Court at Delhi and that the contention that she had not been duly served and had not refused to accept the notice of the petition, cannot be accepted. Thus, the present appeal was filed.
The Court noted that the mode of delivery of summons through registered/speed post and the effect of refusal by the defendant to take delivery of the postal article containing summons has been provided in Rule 9 of Order V of CPC. On perusal of the provision of the Act, one of the modes of delivering summons includes service through registered post acknowledgment due or by speed post. In case of refusal by the defendant to take delivery of the postal article containing summons and the same is received back by the Court with an endorsement made by a postal employee to that effect, the court issuing summons is obliged to declare that the summons had been duly served on the defendant.
In the present case, the summons sent through the registered post was received back unexecuted with the report that “lene se inkaar karne par chipka diya” after which a copy of the summons and the petition, were affixed by him on a conspicuous part of the wife’s residence in the presence of two witnesses. Thus, the service was effected on the wife as per the procedure laid down in Rule 17 of Order V CPC. Thus, the Court held that there is no irregularity in the service of the summons and the Additional District Judge has rightly passed the impugned order.
As per admission during cross-examination, it is clear that wife has been served with summons and she had handed over the copy of the divorce petition to her Advocate, which leads to the conclusion that the appellant had the notice of the “date of hearing” in the divorce petition and had sufficient time to appear in the Court and answer respondent’s claim.
On the aspect of second marriage by the husband, the wife states that the second marriage of the respondent is not a subject matter of the present appeal, and it is for the court to decide about the legal status of the second marriage which is to be tested on the anvil of Section 15 of Hindu Marriage Act. Section 15 enables parties to marry again only after the decree of divorce has become final.
The Court observed that an ex parte decree of divorce is not different from a contested one, and Section 15 of the Act does not make any distinction between a contested decree and an ex parte decree. Thus, an ex parte decree of divorce also it shall be lawful for either party to the marriage to marry again if no appeal is filed against such decree within the period of limitation.
The Court concluded that the application under Order 9 Rule 13 CPC was also filed after seventeen months from the date of ex parte decree as against the limitation period of thirty days from the date of the decree, despite the appellant having been duly served with summons. Thus, it held that application under Order 9 Rule 13 CPC filed by the appellant a day after the second marriage was solemnized by the respondent-husband, and was infructuous for all practical purposes, from the very inception.
[Seema Devi v Ranjeet Kumar Bhagat, 2023 SCC OnLine Del 2257, decided on 21-04-2023]
Advocates who appeared in this case :
For the Appellant: Appellant in Person;
For the Respondent: Mr Neeraj Shekhar, Dr. Sumit Kumar and Mr Keshav Bharti, Advocates along with respondent in Person.
