Friday, August 9, 2013

Set aside divorce AFTER 5 years & 144 days as notice UNSERVED on wife!!. Husband's getting exparte divorce beware ...beware !!! In this case husband has remarried, still ex parte divorce set aside !!


Set aside divorce in favour of husband AFTER 5 years & 144 days as notice UNSERVED on wife!!. Husband's getting exparte divorce beware ...beware !!! In this case husband has remarried, still ex parte divorce set aside !!


learning 
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* husband gets an exparte divorce
* notice served on wife is returned stating 'unserved'
* bailee says that he went to the woman's house, woman refused to take the notice, bailee wanted to stick the notice on the door, woman did NOT allow the same, so he returned stating "..unserved.."
* wife says it is a total fraud on her
* says she was completely un aware of the divorce
* she says the husband took an insurance policy 6 months after divorce and had placed wife as beneficiary 
* other allegations follow
* she seeks set aside of ex parte divorce 5 tears and 144 days AFTER decree !!!
* finally HC gives a dose to Family court NOT ordering summons further, accepting "unserved" etc
* HC condones delay of 5 years and 144 days
* Husband has re married in the meanwhile .... but still HC condones delay 
* overall the husband's case comes out as a weak case and NOT STRONGLY countering wife's arguments
* it is NOT clear IF husband had a weak lawyer or had a weak case itself !!


******************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS DOT NIC DOT IN SITE
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IN THE  HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

IN FAMILY COURT APPEAL (STAMP) NO.7883  OF 2012

Mrs. Regi Suresh Nair ....   Appellant 

vs

Shri Suresh Putharakkal Nair ....    Respondent

Mr. A.S. Khandeparkar i/by Mrs. Shilpa Joshi  for the Appellant.

Mr. H. K. Menghani for the respondent. 

CORAM: P. B. MAJMUDAR &
ANOOP V. MOHTA, JJ.

DATE  : April 20,  2012

ORAL JUDGMENT (Per P. B. Majmudar,J.):

Rule.   By consent the Application is taken up for hearing today.

2 This is an Application filed by the Appellant/wife for condoning the delay of about 5 years, 144 days in  filing  the Appeal which is against   the   decree   of   divorce   granted   by   the   trial   Court.     The Respondent herein has filed a marriage Petition being Petition No.A­ 1406 of 2005 for dissolving the marriage on the ground of cruelty and alternatively on the ground of judicial separation.   The Family Court by its order dated 11 July 2006 passed an exparte decree by dissolving the   marriage     on   the   ground   that   though   served   the   original Respondent/wife has not appeared in  the proceedings.       The  trial Court   accordingly   allowed   the   application   of   the   original Respondent/husband on 11 July 2006.   It is the aforesaid order which is challenged in this Appeal.   Since  there is an inordinate delay for more than 5 years, this Civil Application is filed  for condonation of delay.  

3 Mr.   Khandeparkar,   the   learned   counsel     appearing   for   the applicant/wife vehemently  argued  that  this is  a  case in which  the Respondent/husband   surreptitiously   and   by   committing   fraud proceeded with the Family Court application against the wife though the Court summons was never served on the applicant/wife.  It is the say of the applicant that the Respondent/husband has played  smart and  wanted  to deceive  the wife as according to him, even though the  divorce   was   granted  by   the   trial  Court   on  11   July   2006,  the Respondent/husband never informed about the same and continued to  reside  as husband and wife all  through out keeping  the lady in dark.  It is submitted by him that subsequently, in order to take away the   house   wherein   the   Appellant   used   to   reside   with   the Respondent/husband,   he   took   out   the   proceedings   for   obtaining possession in  the Civil Court.   At  the  time when  she  received  the summons   regarding   the   aforesaid   matter,   she   realised   that   the Respondent wants to take away the possession of the house where she is residing along with him and in fact she came to know for the first time that there is decree for divorce passed by the trial Court.  Having realised   the  said   aspect,   she   filed   an  application  for  setting   aside exparte decree in which the trial Court condoned the delay.  However, the trial Court rejected the application for setting aside the decree on the ground that wife has not made any allegation against the bailiff regarding  the service of notice and,  therefore,  the Family Court did not accept the application for setting aside the exparte decree.  Under these   circumstances,   the   Appellant/applicant   has   chosen   to   file substantive Appeal against the original order and in the process there is a delay of 5 years and by this Application the said delay may be condoned. 

4 In order to substantiate his say, the learned counsel has placed additional bunch of documents, copy of which is given to the other side.  It is pointed out that on 21 December 2006,  that is after six months  from  the aforesaid so­called decree of divorce,  the husband has taken out Tata AIG life Policy, wherein in the column of "spouse", the name of the present applicant is shown as wife.  It is submitted by the learned counsel that that itself shows that the Respondent wanted to keep the Appellant in dark about the divorce decree otherwise after six months from the date of the divorce, he would not have mentioned the name of his wife as nominee.  It is submitted by him that in the column of "nominee", the name of the wife is shown, which form was filled in after six months since the decree of divorce is passed by the trial Court.  

5 The learned counsel has also relied upon the certificate issued by;  the Secretary where  the premises is located,  that is Matruprem Cooperative Housing Society which is dated 22 February 2008.   The certificate   is   issued   by   the   Chairman/Secretary/Treasurer   of   the society, wherein it is  stated  that  the  applicant is  residing with  the Respondent in room No.G/2 from May 2003 till date i.e. 22/02/2008. As per the certificate, the name of the applicant is shown as wife.  It is therefore obvious that after obtaining the decree the Respondent kept the lady in dark about such decree which strengthens the argument of the  applicant  that  summons  of  the  original  proceedings was  never served on the wife and accordingly the behaviour of the Respondent in this behalf itself speaks about the same.  

6 The   learned   counsel   has   relied   on   bailiff's   report   which   is important document to show that whether the court proceedings were served on the wife or not.  The bailiff's report is at page 44.  In the report,  the bailiff says  that, as per  the said report, when  the bailiff went to serve the summons on 24 November 2005 it was a working day i.e. Thursday.     As per the bailiff's report, he went to serve the summons   at   the   premises   in   question   and   that   he   found   the applicant/lady in house, but she refused to accept the summons and therefore he wanted to paste the same outside the house, but she did not allow him  to do so.   Accordingly, he prepared a report as "un­ served".     The word  "unserved" is very much  finding  place in  the report at page 44.   It is submitted by Mr. Khandeparkar, the learned counsel  that if  the summons is unserved, it cannot be said as valid service and, therefore, the Family Court Judge has committed a grave error in proceeding with the matter, treating that wife is served and she is  not  appearing in  the matter.    It is  submitted  that  since  the concerned Respondent   has committed mischief and fraud by which the decree is obtained, delay in filing Family Court Appeal is required to be condoned.  It is submitted that after the application under Order 9, Rule 13 of Code of Civil Procedure  (CPC)  for exparte decree is rejected,   immediately   this   Appeal   is   filed   within   a   period   of   two months.  

7 The learned counsel appearing for the Respondent, on the other hand,  submits  that  since  the  bailiff in  his  report  has  said  that  the applicant   has   refused   to   accept   the   summons,   according   to   him, refusal of court summons is valid service and, therefore, the Family Court rightly proceeded with the matter, treating that wife has not put her appearance.   The learned counsel further submits that it is true that the Respondent, at the relevant time, was serving in a particular company  and  the  date  on which   the  summons  was  served  was  a Thursday.   The learned counsel states that the applicant is a serving women as she was serving as Office Assistant in Rashtriya Minerals, Bhayandar and, therefore, in fact she was in service on the relevant day.  

8 The learned counsel for the Respondent has frankly stated that it is true that the wife was serving at the relevant time, but according to him, once the bailiff has given the report that she refused to accept the notice, it should be treated as a valid service.    He submits that the bailiff has also not mentioned any time in the report.  He is not aware whether,   on   the   relevant   day,   his   wife   has   taken   leave   from   the employment or not.     It is further submitted by him that refusal is a valid service.  He further submits that it is true that even after decree, he continued to stay with the wife for more than 16 months.      The learned counsel submits that even after the decree, within 20 days, he sent a registered letter to his wife, but according to him, he could not serve, as the endorsement is "unclaimed".     He further  stated that even after divorce for more than 16 months  he was residing in the house and thereafter he filed a Suit for getting possession of the flat in question.  

9 We   have   heard   both   the   learned   counsel   appearing   for   the parties at length.  We have also gone through the application filed by the applicant and reply filed by the Respondent and we have also gone through  the  bunch  of  documents which we  have  discussed  above. The present case reflects the sorry state of affairs as to how lightly the decree is passed by  the Family Court without verifying whether the summons has been served upon the concerned person or not.  When a Family Court  decides  a  family  dispute,  the  Judge in  charge  of  the matter,   is   required   to   be   doubly   sure   that   the   court   summons   is properly served on the party concerned in a case where no appearance is made by the husband or wife, as the case may be, before the Court. As per the bailiff's report, it is clear that the bailiff has not tried to see that somebody identified the lady who was in the house.  It is not in dispute that bailiff was not knowing the lady personally nor the bailiff had made any  attempt  to keep any witness present  to identify  the person who was in  the house nor  the  summons was  served in  the presence of the husband.    The bailiff therefore put an endorsement of "unserved" and there is no endorsement of service by refusal, which aspect is very well clear, as per the report of the bailiff.   Inspite of the same, the concerned Judge, in our view, is, in a most casual manner treated  the said bailiff's report as if the Respondent is served. 10 It is unfortunate that even while deciding an application under Order   9   Rule   13   of   CPC,   the   concerned   Judge   has   not   seen   the summons and endorsement on the summons by the bailiff shows as "unserved". 

11 Be that as it may, once there is an endorsement of refusal by a party, the person who is serving the notice is required to point out that he has identified the person and the same person either by the party to the litigation or by punchas or neighbours in the area.  As pointed out above,  the bailiff was not knowing  the lady concerned, nor she was identified by  anybody,  the learned counsel  for  the Respondent frankly accepted  the fact that that bailiff was not knowing  the lady and there is nothing in the report  that somebody has identified  the lady.    Looking to the bailiff's report, it is clear that the bailiff's report clearly shows that notice is unserved.   If there is unserved notice, the concerned Judge was required to take care by issuing fresh summons and verifying himself that there should be a valid service of notice.  In case of doubt, the concerned Judge should issue fresh summons as the Judge is  not  required  to  decide  the matter in  great  haste without verifying whether the court summons is served or not,  as ultimately the Court is required to do justice between the parties in accordance with law. 

12 By reading the report of the bailiff as we have indicated above, the Judge should have issued fresh summons as the endorsement put by  the bailiff is  "notice  unserved".        It is  not in  dispute  that  the applicant was serving at the relevant time.  The learned counsel for the applicant states that the date on which the summons was served was a working day as it was a Thursday.   It is not in dispute that even after the aforesaid decree, the husband continued to reside with the wife   for   18   months   in   the   same   house     and   thereafter   took   out proceedings  for  taking  possession  by  getting  himself  out  from  the premises.   It was a working day and naturally the applicant who is residing in the same house with the husband, would never expect that the husband will go the Court from the house straightway for filing an application for divorce.     

13 It is not in dispute that even in  the Tata AIG Life policy  form which the husband has signed it, clearly shows that the name of  the nominee is shown  to be the applicant/wife and that form has been filled after six months from the so­called divorce of decree.  

14 The aforesaid factual aspect makes the case absolutely clear that in the instant case, the Respondent tried to keep secret regarding the fact of divorce decree from the wife for a long time and subsequently tried to take out proceedings after about 16 months since decree of divorce was passed.   In the meanwhile, they continued to remain as husband and wife even as per the certificate issued by the Cooperative Housing Society where the house is located. 11 911-cam-76-12.sxw 15 It is required  to be noted  that  the present application is  filed before this Court on 9 March 2012.   The Respondent/husband filed caveat and subsequently remarried on 9 April 2012 and the summons of this Civil Application was served on 11 April 2012.   Whether the second marriage is valid or not or what is its effect is not required to be examined in this application.   In our view,  the applicant has made out a sufficient ground for condonation of delay as,  in our view,  from the documents and evidence, it is clear that the trial Court had not taken care to find out whether the court summons was legally served and there is an endorsement that it is unserved.  It is an admitted fact which is not denied by the Respondent that there is nothing on record to show that the bailiff has tried to identify the person before putting an endorsement on summons, nor any neighbours were called, nor husband was present and in whose presence the court summons was served.  

16 It   is   well   known   proposition   of   law   that   fraud   vitiates everything.   In a given case, delay of few days may not be condoned and in a given case, delay of years can be condoned, as per the facts of the case.   The Court is required to consider such aspect from case to case basis. 

17 Considering the conduct of the Respondent as we have indicated above and considering the report of the bailiff which is prima facie suggestive of the fact that it cannot be said to be a valid service of summons so far as the wife is concerned.  Under these circumstances, we are inclined to condone the delay.  Accordingly, Civil Application is allowed.  The delay in filing the Family Court Appeal is condoned.  We may   clarify   that   the   observations   made   hereinabove,   should   be construed only for deciding the delay condonation application. 18 In view of what is stated above, the Civil Application is disposed of and the Rule is made absolute accordingly.   There shall be no order as to costs.

19 The copy of this order may be served on all the Family Court Judges in the State so that in future proper care can be taken when there is an endorsement of refusal of notice, before hearing and/or taking decision on the Petition for divorce on exparte basis.    

(ANOOP V. MOHTA, J.) (P.  B. MAJMUDAR,J.)



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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist