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Allahabad High Court · body

2016 DIGILAW 1470 (ALL)

SRIDEVI v. RAJENDRA PRASAD CHATURVEDI

2016-04-21

ABHAI KUMAR, ARUN TANDON

body2016
JUDGMENT By the Court.—Heard Sri V.C. Dixit, learned counsel for the appellant-wife and Sri Vivek Verma, learned counsel for respondent-husband. 2. This first appeal under Section 19 of the Family Court Act, 1955 has been filed by the wife against the judgment and decree dated 3rd April, 1997 passed by the Judge, Family Court, Gorakhpur in Case No. 281 of 1995, whereby the application filed by the respondent-husband under Section 13 of the Hindu Marriage Act has been allowed ex parte, as also against the judgment and order dated 25th January, 2002 passed by the Judge, Family Court, Gorakhpur in Misc. Case No. 16/74 of 2000, whereby the application filed by the appellant-wife for setting aside the ex parte decree as well as for condoning the delay in filing of the same, has been rejected. 3. The facts in short leading to the present appeal are as follows: The marriage between the appellant-Sri Devi and respondent Rajeendra Prasad Chaturvedi is stated to have taken place, according to the hindu rites and customs in the year 1970. Husband is stated to have filed an application under Section 13 of the Hindu Marriage Act, 1955 for a decree of divorce against the wife on the plea of physical and mental cruelty. The allegations made in the application by the husband, may not be referred to by us, for the reasons as would be clear from what is being recorded here-under. 4. Notices are alleged to have been issued by the Judge, Family Court, Gorakhpur, on receipt of the application of the husband to the wife. Since the wife did not respond to the notices so issued, an order was made to proceed ex parte. Thereafter having regard to the affidavit, which was filed by the husband in support of the facts stated in the application including the allegations of the mental balance of the wife being not stable and that she had threatened the husband with suicide and lastly that the wife being in a habit of having narcotics drugs, the Judge, Family Court proceeded to record that a case of mental and physical cruelty is made out. therefore, granted an ex parte decree of divorce on 3rd April, 1997. 5. therefore, granted an ex parte decree of divorce on 3rd April, 1997. 5. The wife, on coming to know of the ex parte judgment and decree, made an application under Order IX Rule 13 of the Code of Civil Procedure read with Section 151 of the Code of Criminal Procedure. In the application, the factum of the marriage was admitted. It was mentioned that the husband was working in the police department of the State of Uttar Pradesh and that nearly 18 years earlier, a house was purchased by the husband in Mohalla Kharaiya Pokhra, Post Basharatpur, District Gorakhpur by means of a registered sale-deed. The wife alongwith three children, born out of their wedlock, were residing therein. It was also stated that all the children were receiving education. The husband had insisted upon the wife to stay at Gorakhpur, as he was working on a transferable post. It was lastly stated that husband was transferred from Gorakhpur to District Kushinagar on 28th July, 2000. It was only in the month of August, 2000 that during department enquiry, when police visited the place of residence of the wife that she could know that the husband had made an application for deletion of her name from the service records on the basis of a decree. Otherwise she could not have obtained information of ex parte decree of divorce. On then she got the record of Case No. 281 of 1995 examined and it was found that the notice of the proceedings were sent at a wrong address at Allahabad knowingly fully well and that the wife was not residing at the address disclosed. It was also stated that at no point of time the wife had refused to accept the notice sent by the Court by registered post. 6. On the said allegations, the wife prayed for condoning the delay in filing of the application as well as for setting aside the ex parte judgment and decree. This application was numbered as Misc. Case No. 16/74 of 2000 and has been rejected by the Judge, Family Court, Gorakhpur vide order dated 25th January, 2002. 7. We have carefully examined the Judgment and order of the Judge, Family Court refusing to set aside the ex parte judgment and decree. 8. This application was numbered as Misc. Case No. 16/74 of 2000 and has been rejected by the Judge, Family Court, Gorakhpur vide order dated 25th January, 2002. 7. We have carefully examined the Judgment and order of the Judge, Family Court refusing to set aside the ex parte judgment and decree. 8. The Judge, Family Court has recorded that service was deemed sufficient upon the wife of the proceedings because of the endorsement made by the postal department of refusal on the registered envellope. The Judge, Family Court, has further held that there was no collusion between the husband and the post man who had made the remark. It has been explained that at the time of institution of the proceedings and sending of notice to the appellant-wife at the address at Allahabad, the husband was residing at Gorakhpur and therefore, there could not have been any collusion between the post man working at Allahabad and the husband. After having recorded the aforesaid findings, it has been held that there were appropriate service of notice, which has been refused by the wife. Therefore, neither a case for condoning the delay in filing of the application for recall of the ex parte decree is made out nor any case for setting aside the ex parte decree is made out. 9. In our opinion, there has been complete non-consideration of the basic issue, which was raised by the wife in her application for condoning the delay as well as for setting aside the ex parte judgment and decree, namely, that the notice had been sent at an address where the wife was not actually residing and there has been deliberate wrong mention of the address of the place of residence of the wife, in the application filed under Section 13 for divorce. It was the case of the wife that the husband was all along aware that the wife was residing at Gorakhpur in a house purchased by the husband himself but for the reasons best known to him, he had disclosed the address of the wife at Allahabad in the application. Said aspect of the matter has completely been ignored by the Judge, Family Court while rejecting the application of the appellant for condoning the delay as well as for setting aside the ex parte decree. 10. Said aspect of the matter has completely been ignored by the Judge, Family Court while rejecting the application of the appellant for condoning the delay as well as for setting aside the ex parte decree. 10. In our opinion, because of complete non-consideration of the basic issue involved in the matter, namely, as to whether the address disclosed in the application under Section 13 qua the place of residence of the wife at the relevant time was correct or not and as to from what material evidence, it was established that at the relevant time the wife was residing at Allahabad or not, the order impugned cannot be sustained. 11. From the records, which have been produced before us, we find that there is substance in the allegations made by the wife qua her being residing at Gorakhpur all time after the house was purchased by the husband, which fact was supported by the fact that the children were being educated in the institutions at Gorakhpur at the relevant time. 12. We are more than satisfied that in the facts of the case, service of notice upon the wife could not have been deemed sufficient on the remark of refusal made by the post man, nor the same could be the basis for refusing to set aside the ex parte judgment and decree specifically when it was the case of the wife that she was not at the address disclosed in the application under Section 13 for divorce, where the notices were sent. 13. We are satisfied that because of wrong mention of the address of the place of residence of the wife in the application made under Section 13 for divorce, the presumption of service drawn by the Judge, Family Court for the purposes of passing of the ex parte decree cannot be legally sustained. 14. Consequently, we record that the application made by the wife for setting aside the ex parte judgment and decree was liable to be allowed after condoning the delay in filing of the same. The order of the Judge, Family Court, Gorakhpur dated 25th January, 2002 is liable to be set aside. 15. At this stage, we have been confronted with the fact that the husband has already attained the age of 60 years and has retired from police service. The order of the Judge, Family Court, Gorakhpur dated 25th January, 2002 is liable to be set aside. 15. At this stage, we have been confronted with the fact that the husband has already attained the age of 60 years and has retired from police service. He had re-married and had two children borne out from their wedlock from the second wife. 16. We find that the husband had filed an affidavit before this Court duly sworn on 4th August, 2005 and in paragraph Nos. 2 to 6 of the said affidavit, it had been stated that the husband is ready and willing to provide maintenance to the wife, as this Court may direct to the extent that half of the salary be paid to the appellant-wife and after retirement half of the pension be paid to her on regular basis. It had also been stated that the husband shall transfer House No. 55 B Khairaya Pokhra, Basaratpur, District Gorakhpur in the name of the appellant-wife and she will be exclusive owner of the property and after her death, her children will inherit the same. The second wife, Kusum Lata Chaturvedi and her children will have no claim over the aforesaid house in future. 17. The appellant-wife, who is present in the Court, made a statement that if the husband complies with the conditions so mentioned in the affidavit, she will not press for the decree of divorce being set aside and the matter be settled amicably between the parties accordingly. 18. The husband-respondent Rajendra Prasad Chaturvedi, who is also present in the Court through his counsel, Sri Vivek Verma, Advocate informed the Court that it shall not be possible to comply with the offer given in the affidavit, now for certain reasons. 19. We in the facts of the case allow the present appeal and direct as follows: (I) if the husband files an undertaking in the form of an affidavit before this Court as well as before the concerned department that half of the amount of pension, hence forth, be paid to the first wife i.e. appellant, namely, Sridevi directly in her account on month to month basis accordingly; and (II) if the husband agrees to transfer the house No. 55 B Khairaya Pokhra, Basaratpur, District Gorakhpur in the name of the appellant Sridevi exclusively within 15 days from today. 20. 20. The judgment and decree of divorce shall remain on record and the appeal shall stands decided in terms of the settlement noticed above; in that case the concerned department shall ensure strict compliance of the request of the husband. 21. In case the husband does not agree to the said settlement, the ex parte judgment and decree dated 3rd April, 1997 and the order dated 25th January, 2002 passed by the Judge, Family Court, Gorakhpur shall stand set aside. 22. The proceedings of divorce, Case No. 281 of 1995 shall stand restored to its original number and shall be decided afresh in accordance with law after affording opportunity to the parties cocnerned.