* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT.APP.(F.C.) 176/2017 and CM APPL. 36757-36758/2017
ANAND RAWAT ….. Appellant
Through: Mr. Sameer Nandwani, Advocate
LALIT SINGH NEGI ….. Respondent
HON’BLE MS. JUSTICE HIMA KOHLI
HON’BLE MS. JUSTICE DEEPA SHARMA
1. The present appeal has been filed by the appellant, brother of Smt.
Bharti Negi, who happens to be the wife of the respondent praying inter alia
for setting aside an order dated 12.09.2017, passed by the learned Principal
Judge, Family Court, dismissing an application filed by him under Section
114 read with Section 151 CPC, for recall of the order dated 23.05.2017.
2. Mr. Nandwani, learned counsel for the appellant states that the
appellant is the brother of Smt. Bharti Negi. The respondent herein, who is
the appellant’s brother-in-law, has filed a petition for seeking dissolution of
marriage against his wife. The marriage of the aforesaid parties was
solemnised at Mehrauli, Delhi on 23.11.2007, whereafter the respondent had
proceeded alone to the United Kingdom on 07.07.2008 to work as a Chef.
The appellant’s sister had remained at her matrimonial home in Delhi. On
31.10.2008, an offspring was born in Delhi. On 26.01.2011, the appellant’s
sister had left alongwith the girl child to the United Kingdom to join her
husband, the respondent herein.
MAT.APP.(F.C.) 176/2017 Page 1 of 5
3. It is the version of the appellant that his sister had visited India on
21.03.2012 and thereafter she had gone back to the United Kingdom on
30.04.2012, after a patch-up had taken place between her and the respondent
and ever since then, she has been residing in the United Kingdom. In July,
2013, the respondent had returned to India alone, while leaving behind his
wife and child in the United Kingdom.
4. Learned counsel for the appellant states that when the divorce petition
was filed by the respondent on 05.01.2015, notice was issued to his wife at
the residential address of her father and the appellant and the said summons
were received by the father on 02.02.2015. It is contended that service of the
summons were deliberately sought to be effected by the respondent on the
appellant’s sister at her parental home, knowing very well that she is
continuing to reside in the United Kingdom alongwith their minor daughter.
The respondent had even furnished the address of his wife at the United
Kingdoms, in the divorce petition.
5. On 29.05.2015, the appellant herein had appeared before the Family
Court to apprise the court about the present place of the residence of his
sister. Despite the same, the court had directed the respondent/wife in the
petition to file the written statement, without directing that fresh service be
effected on her at the address of United Kingdom. Learned counsel for the
appellant points out that prior thereto, on 02.02.2015, notice had been
directed to be issued to the respondent at her United Kingdom address, to be
effected through the Ministry of External Affairs, Govt. of India and the
respondent had taken steps to file the process fee but the service report was
awaited till 29.5.2015.
MAT.APP.(F.C.) 176/2017 Page 2 of 5
6. Thereafter, on 06.10.2015, the appellant had filed an application
before the learned Family Court under Order V Rule 15 CPC, stating inter
alia that his sister had been residing all along in the United Kingdom, which
fact was to the knowledge of the respondent herein but he has deliberately
given the address of his father-in-law for effecting service on his wife and
that the said summons were received by the father in normal course, not
realising the gravity of the matter and the effect of non appearance by his
daughter in the divorce case.
7. Though there is no specific averment made in the present petition to
the effect that the appellant’s sister is not on talking terms with her father
and her brother, such a submission has been made by learned counsel for the
appellant before us, who states that efforts shall be made by the appellant to
give a written intimation of the pendency of the divorce petition to his sister
based in the United Kingdom, so that she can take appropriate steps to
defend the case. The only anxiety expressed on behalf of the appellant is that
since his father had received the court summons in the matter on behalf of
his daughter and thereafter, deeming service on her, the Court has passed an
ex-parte order against her on 23.05.2017, due to which she is likely to suffer
serious adverse consequences.
8. It is explained by learned counsel that it was in this background that
the appellant had filed yet another application on 12.09.2017, under Section
114 read with Section 151 CPC, for seeking recall of the order dated
23.05.2017, whereby his sister was proceeded against ex-parte. By the
impugned order dated 12.09.2017, the captioned application filed by the
appellant has been dismissed by the learned Family Court, while imposing
costs of Rs.20,000/- on him, for wasting the court’s time.
MAT.APP.(F.C.) 176/2017 Page 3 of 5
9. Counsel for the appellant states that the bonafide attempt of the
appellant was to bring on record the fact that his father had erroneously
accepted the summons in the divorce petition without realising the serious
consequences of non-appearance on the part of his daughter and the fact was
sought to be brought to the notice of the Learned Family Court by pointing
out that the appellant’s sister is permanently residing in the United Kingdom
since the year 2011 and had not returned to India after 2012.
10. We have enquired from learned counsel for the appellant as to
whether the appellant’s sister, (wife of the respondent) has executed a Power
of Attorney in his favour, authorizing him to contest the divorce petition on
her behalf. The reply is in the negative. Learned counsel submits that as his
sister is not on talking terms with him and his father, he does not have any
Power of Attorney. He, however, states that efforts shall be made by the
appellant to contact his sister through e-mail and other electronic modes so
as to inform her about the pendency of the divorce petition filed by the
respondent against her and the orders passed therein by the learned Family
Court, so that she can seek legal recourse
11. As the next date of hearing fixed before the Family Court is
06.11.2017 and the divorce petition is listed on that date for final arguments,
the appellant shall do the needful within one week from today. Counsel for
the appellant undertakes that henceforth, the appellant shall not file any
application in the pending divorce petition filed by the respondent. His only
request is that the costs of Rs.20,000/- imposed under the impugned order,
be waived, as the said order is too harsh.
12. In view of the facts and circumstances noted above, the appeal is
disposed of at the stage of admission itself by modifying the order dated
MAT.APP.(F.C.) 176/2017 Page 4 of 5
12.09.2017 only to the extent that the costs of Rs.20,000/-, imposed on the
appellant are waived. The appellant is cautioned to refrain from filing any
further applications in the divorce petition instituted by the respondent
against his sister. The appellant shall take immediate steps to intimate his
sister about the pendency of the divorce petition and file an affidavit
alongwith the proof of intimation before the learned Family Court on
06.11.2017. We may note that notice is not being issued in the present
appeal to ensure that the divorce petition filed by the respondent and listed
before the Family Court, for final arguments on 6.11.2017 does not get
delayed as also for the reason that waiver of costs alone as imposed by the
Family Court has been prayed for by counsel for the appellant.
13. The appeal is disposed of alongwith the pending applications. A copy
of this order be forwarded by the Registry forthwith to the learned Family
Court for information.
HIMA KOHLI, J
DEEPA SHARMA, J
OCTOBER 13, 2017
MAT.APP.(F.C.) 176/2017 Page 5 of 5