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1995 DIGILAW 241 (GAU)

Sunanda Chaudhuri v. Ashok Kumar Chaudhuri

1995-11-06

A.K.PATNAIK, N.G.DAS

body1995
A. K. Patnaik, J. - This is an appeal against the exparte judgment and decree dated 19.4.89 passed by the learned Additional District Judge, West Tripura at Agartala in case No.TS 8 (Divorce) of 1988 decreeing dissolution of marriage between the appellant and the respondent under section 13 of the Hindu Marriage Act, 1955 on the condition that the respondent shall pay a sum of Rs. 10,000/- for in-depth consideration for welfare of the distressed lady. 2. The brief facts of the case are that the respondent filed the aforesaid suit in the Court of the learned Additional District Judge, West Tripura stating therein that the marriage was solemnised between the appellant and the respondent as per Hindu rites in the year 1978. But soon after the marriage it became clear to the respondent that the appellant was not normal in her behaviour and that she refused to co-habit with the petitioner and in fact there has been no co-habitation between the two parties. It was also alleged that the appellant was of unsound mind and that there has been no issue due to the wed-lock. On the grounds of abnormal behaviour of the appellant and of her unsound mind, a divorce for dissolution of marriage was sought under section 13 of Hindu Marriage Act, 1955. Thereafter, the Additional District Judge accepted the petition and registered the case and issued notices to the appellant by order dated 27.6.88. But Service Report was received with the report that the appellant was not available and the respondent was directed to take further steps by 9.9.88. But no steps were taken further by the respondent on 8.9.88 and on 3.12.88, the suit was fixed on 18.1.89 for taking steps by the respondent. On 18.1.89, however, the respondent filed a petition for time to take steps which was allowed and the case was posted to 9.2.89 when the respondent filed a petition for substituted service which was allowed and the case was posted to 19.4.89 for Service Report. Thereafter, the notice to the appellant was advertised in the Tripura Darpan dated 12.4.89. The appellant did not however appear in the Court on 19.4.89 when the case was heard and decreed exparte by the learned Additional District Judge on the condition that for dissolution of the marriage under section 13 of the Hindu Marriage Act, the respondent shall pay a sum of Rs. The appellant did not however appear in the Court on 19.4.89 when the case was heard and decreed exparte by the learned Additional District Judge on the condition that for dissolution of the marriage under section 13 of the Hindu Marriage Act, the respondent shall pay a sum of Rs. 10,000/- to the appellant for an in-depth consideration and welfare of the distressed lady. From the order sheet of learned Additional District Judge if is found that on 19.4.89, a petition was filed by the respondent along with the Treasury Challan No. 11 dated 15.6.89 showing a deposit of Rs. 10,000/- and the Court passed orders stating therein that the amount should be paid to the appellant on her application with due identification. 3. When the appeal was taken up for hearing today, Mr. B. Das, learned counsel for the respondent raised a preliminary objection to the maintainability of the appeal. He submitted that after the period of limitation for filing the appeal against the decree of divorce, the respondent has married for the second time, and hence the second marriage of the respondent was solemnised as permitted under section 15 of the Hindu Marriage Act, 1955. He further submitted that since the second marriage has already taken place as permitted under law, the present appeal filed by the appellant belatedly was not maintainable. 4. Mr. DR Chaudhuri, learned counsel for the appellant, on the other hand, submitted that the appeal, though filed after the period of limitation, has been entertained by the Court by condoning the delay under section 5 of the Limitation Act, 1963 by order dated 8.4.91 and accordingly the appeal was maintainable. He further submitted section 15 of the Hindu Marriage Act, 1955 could not take away the right of appeal as provided under section 28 of the said Act and once the delay in filing has been condoned and the appeal has been admitted for hearing the impugned decree of divorce would be subject to the result in the appeal and section 15 cannot be a bar to the maintainability of the present appeal. On facts, Mr. Chaudhuri further submitted that since the decree of dissolution of marriage was to take effect on the condition that a payment of Rs. 10,000/- was made by the respondent to the appellant and in fact the said sum of Rs. On facts, Mr. Chaudhuri further submitted that since the decree of dissolution of marriage was to take effect on the condition that a payment of Rs. 10,000/- was made by the respondent to the appellant and in fact the said sum of Rs. 10,000/- has not been paid to the appellant as per the decree, dissolution has not taken effect and section 15 of the Hindu Marriage Act, 1955 which expressly applies to the case where "marriage has been dissolved by decree of divorce" is not attracted to the present case. 5. In reply to the aforesaid submission of Mr. Chaudhuri, Mr. Das submitted that the order sheet of the trial Court would show that since the respondent could not find the appellant for the purpose of making the payment of Rs. 10,000/- a petition was filed on 19.6.89 alongwith Treasury Challan No. 11 dated 15.6.89 indicating the deposit of Rs. 10,000/- and the trial Court expressly passed orders that the condition as stated in the decree for divorce has been fulfilled and directed that the amount should be paid to the appellant on her application with due identification. Mr. Das also relied on the judgment of the Apex Court in the case of Lata Kamat vs. Vilas, AIR 1989 SC 1477 and submitted that the said judgment makes it clear that once the limitation for filing appeal against a decree of divorce expires, the parties could remarry under section 15 of the Hindu Marriage Act, 1955 and that such re-marriage contracted after the expiry of the period of limitation would be a valid marriage in the eyes of law. Mr. Das submitted that it would, therefore, logically follows that once the limitation period was over and anyone of the parties remarried as permitted under section 15 of the Act, the appeal against the decree of divorce in respect of the first marriage would be rendered infructuous notwithstanding the condonation of delay in filing the appeal by the appellate Court. 6. It is difficult to accept the aforesaid submission of Mr. Das. 6. It is difficult to accept the aforesaid submission of Mr. Das. We find from a reading of the aforesaid judgment in the case of Lata Kamat vs. Vilas (supra) that it has held by the Supreme Court that the provision of section 4 to 24 of the Limitation Act were applicable also to Hindu Marriage Act and accordingly the provision for condonation of delay in section 5 of the Limitation Act would also be applicable to an appeal under section 28 of Hindu Marriage Act, 1955. This being the position of law as has been explained by the Apex Court in the aforesaid case, orders passed under section 5 of the Limitation Act in respect of an appeal under section 28 of the Hindu Marriage Act would save an appeal filed beyond the period of limitation before this Court. In the present case, the application under section 5 of the Limitation Act having been allowed by this Court by order dated 8.4.91, the present appeal was maintainable and has not been rendered infructuous and has to be decided on merits and consequently the judgment that is delivered in the appeal will determine the right of the parties. We are further of the view that section 15 of the Hindu Marriage Act, 1955 permits a remarriage after the expiry of the period of limitation prescribes for filing an appeal against a decree for dissolution of marriage, but does not affect the right conferred on the other party to file an appeal against the said decree by section 28 of the said Act. For this proposition, we are supported by the decision in the case of Kishen Lal vs. Krishna, AIR 1971 J & K 31 cited by Mr. Chaudhuri, learned counsel for the petitioner. 7. Coming now to the merits of the appeal, Mr. Chaudhuri learned counsel for the appellant submitted that Order 5 Rule 19A CPC provides for simultaneous service of summons by registered post and by the ordinary process and that the order sheet of the trial Court show that the notice was served by ordinary process and no steps were taken for the service of the notice by the registered post. Mr. Mr. Chaudhuri further submitted that a reading of Order 5 Rule 20, sub-rule (1A) CPC would show that in case a substituted service is ordered by the Court by an advertisement in a newspaper, then such advertisement has to be made in a newspaper having wide circulation in the locality. In the present case, the advertisement of the notice was published not in the Dainik Sambad which has wide circulation in the locality but in the Tripura Darpan which was hardly any circulation in the locality. Mr. Chaudhuri also submitted that it would be clear from Order 5 Rule 19 CPC that where the summons are returned unserved under Order 5 Rule 17 and the return under that rule has not been verified by the affidavit of the Serving Officer, then the Court 'shall' examine the Serving Officer on oath. But in the present case although the service returned unserved and had not been supported by an affidavit of the Serving Officer in support of his report that the service could not be made on the appellant, the Serving Officer was not examined on oath as per the said requirement of the rule. The impugned ex-parte decree thus vitiated by flagrant violation of the mandatory provisions of the CPC. 8. In reply to the aforesaid submission, Mr. Das, learned counsel for the respondent, submitted that the aforesaid provisions of the Order 5 CPC relied on by Mr. Chaudhuri are at best directory and not mandatory and what the Court has to ensure in such cases is that there has been substantial compliance of the procedure prescribed therein. According to Mr. Das, the non-compliance of the aforesaid provisions of Order 5 does not vitiated the proceedings altogether so as to call for setting aside the decree. 9. It is not possible to accept the aforesaid submission of Mr. Das. The appellant's grievance in the present case was that she has not received summons from the trial Court and that an exparte decree of divorce has been obtained against her in violation of the provisions of Order 5 CPC regarding service of summons. 9. It is not possible to accept the aforesaid submission of Mr. Das. The appellant's grievance in the present case was that she has not received summons from the trial Court and that an exparte decree of divorce has been obtained against her in violation of the provisions of Order 5 CPC regarding service of summons. A reading of Order 5 Rule 19 CPC and in particular the use of the expression 'shall' therein makes it clear that the said provision is a mandatory and hence if an affidavit had not been filed alongwith the unserved service return, the Serving Officer ought to have been examined on oath. That apart the provision in Order 5 Rule 19 CPC for simultaneous issues by summons for service by registered post in addition to personal service has been provided in the CPC only to take care of the situation like the present case where summons may not be served on the defendant by the ordinary process. In our opinion therefore, unless notices were issued also by registered post to the appellant as required under Order 5 Rule 19A CPC an order for substituted service under Order 5 Rule 20 CPC ought not to have been passed by the Court. We are thus of the considered opinion that the eXparte decree passed by the trial Court against the appellant without service of the summons in accordance with the provisions of Order 5 CPC stood vitiated. 10. It was next contended by Mr. Chaudhuri, learned counsel for the appellant, that the exparte decree was based only on the evidence of the respondent and a reading of his evidence would show that no ground of divorce under section 13 of the Hindu Marriage Act has been made out by him. Mr. Das, on the other hand, submitted that once the appellant has chosen not to appear and contest the prayer for divorce before the trial Court, this point cannot be raised by the appellant before this Court and that on the basis of whatever evidence the respondent has led before the trial Court, a decree of divorce for has to be passed under section 13 of the Hindu Marriage Act. 11. With great respect, we do not agree with the said submission of Mr. Das. 11. With great respect, we do not agree with the said submission of Mr. Das. A decree of divorce has serious consequences for the parties to the marriage and for their childredn and hence before a decree of divorce can be passed under section 13 of the Hindu Marriage Act, 1955 the Court must be fully satisfied on the basis of evidence which has been led by the petitioner that a ground for divorce indicated in section 13 of the said Act has been made out. In the instant case, on a reading of the evidence of the respondent who was the sole witness examined by the trial Court, we are of the opinion that the respondent has not made out any of the grounds under section 13 of the Hindu Marriage Act. 12. In the result the impugned decree of the Court passed on 19.4.89 in TS No.8 (Divorce) of 1988 the learned District Judge, West Tripura is set aside and the matter remanded to the Court of the learned District Judge, West Tripura for fresh trial in accordance with the law. The learned District Judge will readmit the suit in the register of civil suit and proceed to determine the suit and the evidence recorded during the original trial shall, subject to all just exceptions, be the evidence during trial after remand. The parties shall appear before the learned District Judge on 18th December, 1995. The appeal is allowed but in the circumstances there shall be no order as to costs.