1992 (5) TMI 87 - SC - Indian Laws

Non service of notice - Held that - After the notices sent by registered post were received back the Family Court did not make any attempt to serve the appellant through the process of the Court. The appellant was no stranger to the respondent. She was his wife. It could not have been difficult for him to find out the address where she was staying. Under the circumstances resort to the substitute service by way of publication in the newspaper was not justified. Therefore of the view that there was sufficient cause for the non-appearance of the appellant in the matrimonial petition before the Family Court.set aside the order of the Family Court dated June 24 1990 and allow the appellant s application dated December 18 1989 and set aside the ex parte decree passed against the appellant in Marriage Petition

Issues Involved:
1. Dismissal of the application for setting aside the ex parte proceedings.
2. Competency of the divorce petition under Section 14 of the Hindu Marriage Act.
3. Validity of the divorce-decree based on evidence.
4. Substitution of the decree of divorce with a decree for judicial separation by the High Court.

Issue-Wise Detailed Analysis:

1. Dismissal of the Application for Setting Aside the Ex Parte Proceedings:
The appellant-wife contested the ex parte divorce-decree granted by the Family Court at Pune. She argued that she did not receive any notice or summons from the court. The Family Court dismissed her application on the reasoning that no fresh notice was required after the Supreme Court vacated the stay, and the appellant should have made inquiries about the next hearing date. The High Court upheld this reasoning. However, the Supreme Court found that the interest of justice required the issuance of a fresh notice to the parties after the stay was vacated. The Court noted that the appellant was justified in her assumption that proceedings would resume only after fresh notice. The Court emphasized that the Family Court's attempt at substituted service through newspaper publication was not justified given the circumstances. Consequently, the Supreme Court set aside the ex parte decree and the subsequent judgments of the Family Court and the High Court.

2. Competency of the Divorce Petition Under Section 14 of the Hindu Marriage Act:
The appellant argued that the divorce petition was filed prematurely, within seven months of the marriage, violating Section 14 of the Hindu Marriage Act, which mandates a one-year period before filing for divorce. The Supreme Court did not find it necessary to address this point explicitly due to the resolution of the first issue.

3. Validity of the Divorce-Decree Based on Evidence:
The appellant contended that the divorce-decree was based on vague allegations and insufficient evidence. She argued that the evidence presented by the respondent-husband was neither credible nor substantial. The Supreme Court did not delve into this issue in detail, as the ex parte decree itself was set aside on procedural grounds.

4. Substitution of the Decree of Divorce with a Decree for Judicial Separation by the High Court:
The appellant challenged the High Court's decision to modify the decree of divorce to a decree for judicial separation instead of dismissing the divorce petition outright. The Supreme Court's decision to set aside the ex parte decree rendered this issue moot, as the case was remanded for fresh proceedings.

Conclusion:
The Supreme Court set aside the ex parte divorce-decree and the judgments of the Family Court and the High Court. The case was transferred from the Principal Judge, Family Court, Pune to the Principal Judge, Family Court, Bombay, with instructions for the parties to appear on June 22, 1992. The Court also noted unsuccessful attempts to persuade the parties to reconcile or settle their dispute amicably. The appeal was allowed with no order as to costs.

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