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2009 DIGILAW 913 (RAJ)

Kanta Sharma v. Tulsi Ram

2009-03-31

PRAKASH TATIA

body2009
Judgment Hon'ble TATIA, J.—Heard learned counsel for the parties. 2. The appellant, wife of the respondent, being aggrieved against the ex parte divorce decree dated 25.5.2005, has preferred this appeal to challenge said ex parte decree. 3. Brief facts of the case are that according to the respondent-husband of the appellant, appellant's and respondent's marriage took place 15 years before the filing of the divorce petition by the respondent before the court of District Judge, Bhilwara in the year 2002. Out of the wedlock, one son Vinod and one daughter Deepa born to them. At the time of the filing of the divorce petition, the age of Vinod was 12 years and the age of Deepa was 8 years. The respondent-applicant submitted that the appellant and respondent and their children were surviving on the income of respondent's father Bhairu Lal. The respondent is an innocent person and is not in position to do anything. The appellant left the respondent about four years ago and started living at Bhuwana in District Udaipur. She without any reason, deserted the respondent. It is also submitted that the appellant cruely treated the respondent when she was living with the respondent. It is submitted that the respondent was of poor health and he was even beaten by the appellant and on one occasion, blood came out because of beating by the appellant given to the respondent and the respondent had to take treatment from private clinic. With these allegations, the divorce petition was filed by the respondent in the trial court on 4.3.2003. The notices were sent to the respondent which were returned as unserved and, thereafter, again notices of respondent were sent though the court which were returned and ultimately, the notices were served upon the wife of the respondent-appellant and as per the report, through her family member. The process server reported that notice was accepted by appellant's brother's wife. The process server obtained the signatures of appellant's brother's wife Smt. Rekha w/o Bhupesh Sharma. Thereafter, power was filed on behalf of the appellant before the trial court and time was sought for filing reply to the divorce petition. Ultimately, on 3.9.2004, when appellant's advocate did not appear before the trial court, the ex parte order was passed by the trial court on 3.9.2004. Thereafter, power was filed on behalf of the appellant before the trial court and time was sought for filing reply to the divorce petition. Ultimately, on 3.9.2004, when appellant's advocate did not appear before the trial court, the ex parte order was passed by the trial court on 3.9.2004. The appellant's advocate submitted an application for setting aside the ex parte order by showing his personal reason for his absence on 3.9.2004. The trial court allowed the application and set aside the ex parte order vide order dated 26.10.2004 and the case was adjourned to 19.11.2004 for filing reply. Since on 19.11.2004, reply was not filed, therefore, appellant's filing reply was closed and thereafter, the evidence of the appellant was recorded after three adjournments. It appears from the order-sheet dated 13.5.2005 that the learned counsel for the appellant-non-applicant, stated before the trial court that he informed the appellant-non-applicant about the date fixed by the court and he wants to place on record those letters on record. On 17.5.2005, the appellant's advocate placed on record of the trial court the notice which he sent to the appellant in envelope and which returned back and copy of the inland letter which was also sent to the appellant. 4. It will be worthwhile to mention here that on 17.5.2005, the counsel who appeared for the appellant in the trial court, informed that he submitted Vakalatnama for appellant and said Vakalatnama was given to him by the counsel for the respondent which he has filed believing the counsel for the respondent. It is stated that the appellant did not contact him at any time nor he is knowing the appellant. He sent the notices referred above to the appellant but he could not contact, therefore, he is pleading no instructions. The trial court, after considering the above facts, observed that since information was sent to the appellant by her counsel by registered post and by letter Under Certificate of Posting and the appellant did not contact her advocate, therefore, there is no reason to give further notice by the court to the appellant. Then ultimately, the trial court decreed divorce petition filed by the respondent. Hence this appeal has been preferred but with delay of 584 days. 5. The appellant submitted an application under Section 5 Limitation Act for condonation of delay of 584 days, which was seriously opposed by the respondent. Then ultimately, the trial court decreed divorce petition filed by the respondent. Hence this appeal has been preferred but with delay of 584 days. 5. The appellant submitted an application under Section 5 Limitation Act for condonation of delay of 584 days, which was seriously opposed by the respondent. Upon which,on 19.5.2008, brother Justice Mr. K.K. Acharya, after considering the arguments of the parties, admitted the appeal with liberty to the respondent to raise objection regarding delay in filing the appeal. On 19.5.2008, the appellant, respondent and respondent's father were present and this Court observed that if some efforts will be made, the parties may reconcile. In hope of reconciliation, time was granted. On 18.12.2008, the learned counsel for the respondents submitted that there is no possibility of reconciliation between the parties and, therefore, the appeal may be heard. However, the learned counsel for the appellant submitted that the appeal may not be heard finally and may be put in due course for hearing. Meaning thereby, the appeal be heard after several years. Be it as it may be. This Court refused to put the appeal in due course because of the reason that in matrimonial matters there is no justification for keeping the appeal for hearing in due course and this Court fixed the date for hearing as 4.2.2009. After said order, on 15.1.2009, permission was sought on behalf of appellant for listing the matter in court as the appellant submitted an application under Section 24 of the Hindu Marriage Act which was not filed for about two years. This Court observed that since the hearing of the appeal is fixed on 4.2.2009, therefore, instead of passing any order on such delayed application of the appellant filed under Section 24 of the Hindu Marriage Act, the appeal itself may be heard as the learned counsel is already appearing on behalf of the appellant and is likely to argue on 4.2.2009. 6. The learned counsel for the appellant vehemently submitted that the decree under challenge deserves to be set aside as it has been passed without notice to the appellant. It is submitted that report on the summon that notice was given to the appellant's brother's wife, is false and the appellant was not residing with the appellant's brother at Udaipur where the notice was sent. It is submitted that report on the summon that notice was given to the appellant's brother's wife, is false and the appellant was not residing with the appellant's brother at Udaipur where the notice was sent. It is submitted that she came to know about the divorce decree only in the month of February, 2007 when her husband disclosed to the relatives of the appellant that respondent has obtained divorce decree year's ago. The appellant then enquired about the divorce petition filed by the respondent and obtained the certified copy of the judgment and decree dated 25.5.2005. She also stated that she never engaged Shri Shailendra Kumar as her Advocate and it appears that respondent in collusion with Advocate Shailendra Kumar, got a forged Vakalatnama filed in the trial court for the appellant. It is also submitted that she lodged complaint against Advocate Shri Shailendra Kumar in the Bar Council of Rajasthan and lodged report to the Police Station, Bhilwara on 7.3.2007 and 17.3.2007. 7. The respondent-husband submitted reply to the application under Section 5 Limitation Act and stated that notice issued in the divorce petition filed by the respondent was duly received by the family member of the appellant and the appellant herself engaged Advocate Shri Shailendra Kumar who filed power on behalf of the appellant and, therefore, the limitation for appeal against the judgment and decree passed by the trial court will run from the date of decree and not from the date of alleged knowledge of the decree. It is submitted that he never had any collusion with the Advocate Shri Shailendera Kumar and the allegations are false and baseless. It is submitted that the appellant deliberately did not choose to appear before the trial court and deliberately did not challenge the divorce petition and, therefore, the application under Section 5 Limitation Act may be dismissed. 8. It appears from the order passed in this appeal dated 19.5.2008 that the delay has not been condoned, yet the appeal has been admitted with right to the respondent to raise the objections regarding delay in filing the appeal. 8. It appears from the order passed in this appeal dated 19.5.2008 that the delay has not been condoned, yet the appeal has been admitted with right to the respondent to raise the objections regarding delay in filing the appeal. Once appeal has been admitted then looking to the nature of the proceedings, I do not deem it proper to dismiss the appeal only on the ground of delay even when the reasons given by the appellant in the application for condonation of delay are not sufficient for condonation of delay, as the appellant did not disclose from whom he came to know about the decree in question, which was passed almost two years ago against her, she also did not state in the application under Section 5 Limitation Act that Bhupesh Sharma is not her brother and Rekha is not her brother's wife. She also did not state in the application under Section 5 Limitation Act that Smt. Rekha, his brother's wife did not receive the notice sent by the court in which there is an endorsement of the process server that the notice was received by Smt. Rekha for the appellant. The appellant also did not submit affidavit of her brother and her brother's wife. At this juncture, it will be worthwhile to mention here that complaint lodged by the appellant against the Advocate Shailendra Kumar has already been rejected by the Bar Council of Rajasthan and further the police has not filed any challan against either learned Counsel Shailendra Kumar or against the respondent on the complaint lodged by the appellant. The appellant did not submit any complaint to the trial court for taking cognizance against learned counsel Shri Shailendra Kumar or against the respondent for fabricating the false report to mislead the court. Not only above but even in appeal also she did not state that Bhupesh Sharma is not her brother and Smt. Rekha w/o Bhupesh Sharma did not receive the court's notice. Not only above but even in appeal also she did not state that Bhupesh Sharma is not her brother and Smt. Rekha w/o Bhupesh Sharma did not receive the court's notice. In rejoinder, the appellant stated that “no name of so called family members, whatsoever has been mentioned, has not been disclosed and in absence of any such name, it is not possible to relate any family members.” She also stated that address of the appellant mentioned in the divorce petition was wrong and she does not reside at the given address and is residing at 31/22, Sector 3, Pratap Nagar, Tonk Road, Sanganer, Jaipur with her brother since 1.7.2004. Along with rejoinder, affidavit of Naresh Sharma, who is also brother of the appellant, has been filed by the appellant wherein he stated that since June, 2003, he was making efforts to get the job at Jaipur and from 1.7.2004 he is residing in Pratap Nagar, Sanganer, Jaipur. However, he stated that his permanent address is- Plot no.4, Suryodaya Colony, Bhuwana, Udaipur where he was residing with her family and since July 2004, he shifted to Jaipur. In this affidavit also, it has not been stated that Bhupesh Sharma is not his and appellant's brother nor it has been stated that Rekha is not wife of said Bhupesh Sharma. He has also not stated that notice was not received by Smt. Rekha. Further more, again said Bhupesh Shrma and Rekha's affidavits have not been filed by the appellant even along with the rejoinder to show that the notice was not served upon them. Silence of the appellant about Rekha and his brother Bhupesh is conspicuous and goes against the appellant. 9. If we look into the merits of the case then the appellant herself has stated in her application under Section 24 of the Hindu Marriage Act that she was deserted by the respondent-husband in July, 1998 and since last nine years (by now), she is living separate from her husband. Almost same period has been given by the respondent for his living separate from the appellant, therefore, admittedly, since 1998 the appellant and respondent are not living together and respondent's contention that the appellant left the respondent, is fully proved by the evidence produced by the respondent. 10. Almost same period has been given by the respondent for his living separate from the appellant, therefore, admittedly, since 1998 the appellant and respondent are not living together and respondent's contention that the appellant left the respondent, is fully proved by the evidence produced by the respondent. 10. So far as the allegation that the respondent's advocate gave Vakalatnama with the sign of the appellant to the counsel Shri Shailendra Kumar is concerned, that appears to be a story concocted in view of the fact that the complaint against the said advocate has already been dismissed by the Bar Council of Rajasthan and the police has not initiated any action against the said Advocate nor any challan has been submitted against these two persons by the police. There is no material on the record on the basis of which it can be said that the notice of respondent was not served by the trial court before the decree was passed against her. The conduct of the counsel who appeared for the appellant, in trial court cannot be appreciated inasmuch as that after taking so many adjournments for the appellant, that too after service of the notice upon the respondent and after filing the power on behalf of the respondent, levelled false allegations against respondent's advocate in his application dated 17.5.2005 wherein he has exposed himself by saying that he accepted the Vakalatnama from the opposite party's counsel and filed it in the court and took steps in the proceedings for the appellant. It is unbelievable that one advocate will accept brief or power on behalf of the client from opposite counsel. Therefore, the stand of Shailendra Kumar, taken in application under Section1 7.5.2005 casts serious doubt on his plea that he appeared on instructions of respondent's advocate in the trial court by filing power on behalf of the appellant. 11. The learned counsel did not challenge the judgment and decree of the trial court on merit, obviously, for the reason that there is unrebutted evidence against the appellant, of the respondent and from evidence of the respondent, it is proved that the appellant deserted the respondent and her treatment to the respondent was cruel. 12. The learned counsel for the appellant relied upon the judgment of this Court delivered in the case of Smt. Sarma vs. Manom Yadav passed in DB Civil Misc. Appeal (Divorce) No.1151/2002 decided on 5.2.2007. 12. The learned counsel for the appellant relied upon the judgment of this Court delivered in the case of Smt. Sarma vs. Manom Yadav passed in DB Civil Misc. Appeal (Divorce) No.1151/2002 decided on 5.2.2007. In said case the Division Bench of this Court found that wife had no opportunity to oppose the case, therefore, ex parte order was set aside in the interest of justice. Here the facts show that the appellant was served with notice of divorce petition and she appeared through her advocate and no case is made out for any indulgence in the present matter, therefore, the said judgment has no application. 13. The learned counsel for the appellant also relied upon the judgment of Chhatisgarh High Court delivered in the case of Smt. Shashikala Pandey vs. Ramesh Prasad Pandey (AIR 2009 Chhatisgarh 1), wherein defence of the husband in petition for divorce struck off and appeal filed by the wife was allowed on account of noncompliance of the order of the High Court by the respondent-husband for payment of interim maintenance. Said case has no relevance as no order of maintenance has been passed by this Court in favour of the appellant. 14. The appeal of the appellant is ,therefore, liable to be dismissed. 15. The appellant submitted an application under Section 24 of the Hindu Marriage Act before this Court on 15.1.2009, whereas the appellant is admittedly living separate from the respondent since 1998. The decree for divorce was passed against the appellant on 25.5.2005. She challenged the said decree in the year 2007 but did not pray for grant of maintenance or litigation expenses. The appellant failed to show why she did not claim the maintenance for such a long period and submitted the application for grant of maintenance only when the appeal became mature for hearing. So far as the maintenance is concerned, looking to the conduct of the appellant, I do not find any reason to award maintenance to the appellant, however, she is entitled to litigation cost which is awarded by taking a lenient view in favour of the appellant as she has engaged advocate to contest the appeal and incurred expenses, therefore, litigation expenses of Rs.7500/- is allowed and the application for grant of maintenance filed under Section 24 of the Hindu Marriage Act for other reliefs is rejected. 16. 16. Consequently, the appeal of the appellant is dismissed and the application filed under Section 24 of the Hindu Marriage Act is partly allowed.