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1908 DIGILAW 175 (CAL)

Arabella Clarressa Eliza Mitter v. John Charles Mitter

1908-07-01

body1908
JUDGMENT Fletcher, J. - This is a petition presented to this Court by [Mrs. Arabella Clarressa Eliza Mitter, praying for a dissolution of her marriage with the Respondent on the ground of cruelty and adultery. Now, it appears that the petition has not been personally served upon the Respondent. Service has been effected upon him, as appears from the return and affidavit of service, by the affixing of a copy of the citation or summons with a copy of the petition on the outer door of the lodging house in Kidderpore in which he was supposed to be ordinarily residing. 2. That is not the usual procedure for serving citation in matrimonial cases. The practice as to that in this Court is governed by what prevails in the Matrimonial Courts in England. 3. Sec. 50 of the Indian Divorce Act says that "every petition under this Act shall be served on the party to be affected thereby, either within or without British India, In such manner as the High Court (not the Civil Procedure Code) by general or special order from time to time directs." 4. In this case, no order for substituted service of the petition was obtained. It is essential, in suits for dissolution of marriage, that the petition of the Plaintiff should be served on the Respondent or that sufficient notice of its contents should be given to him. In this case that was not done. But, on that ground alone, I would not hold that the Petitioner is not entitled to the relief she asks for. There is another ground, however, on which, I think, the petition fails. The Petitioner left the Respondent for good as far back as the 25th March 1903 and this petition was not filed until the 7th March last, that is, a period of about five years. In my opinion, no satisfactory explanation has been given for this long delay. 5. Sec 14 of the Divorce Act obliges me to refuse a decree for dissolution of marriage "if the Petitioner has in the opinion of the Court been guilty of unreasonable delay In presenting or prose-outing such petition." There is no discretion left in me but to find upon the evidence that the Petitioner has been guilty of unreasonable delay In presenting or prosecuting her petition. 6. 6. It is, however, said that she is suing in forma, pauperis and that she had no money to bring the suit earlier. That is not a good excuse as she could have filed her suit in forma pauperis long ago. Therefore, on that ground and on the other ground that the Petitioner is not shown to have been served on the Respondent, I must dismiss the petition.