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Delhi High Court
Capt Dinesh Ahluwalia vs Roop Ahluwalia on 27 February, 2024
Author: Neena Bansal Krishna
Bench: Suresh Kumar Kait, Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 14th September, 2023
% Pronounced on:27th February, 2024
+ MAT.APP.(F.C.) 186/2018 CM APPLs. 31521/2018,
30069/2022, 30149/2022
CAPT DINESH AHLUWALIA ….. Appellant
Through: Mr. Vipul Ganda, Mr. Zorawar Singh,
Mr. Jayant Rastogi, Ms. Nirti Dua
Mr. Ishan Upadhaya, Advocates.
versus
ROOPA AHLUWALIA ….. Respondent
Through: Counsel (appearance not given).
CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
NEENA BANSAL KRISHNA, J.
1. The present Appeal under Section 39(2) of the Special Marriage Act,
1954 (hereinafter referred to as the “Act, 1954”) read with Section 19(1) of
the Family Courts Act, 1984 (hereinafter referred to as the “Act, 1984”) has
been filed on behalf of the appellant/husband assailing the Order dated
10.04.2018 vide which the Application under Order IX Rule 13 read with
Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as
the “CPC, 1908″) filed on behalf of the respondent/wife has been allowed
and the ex parte Judgment dated 24.03.2005 granting divorce in favour of
the appellant/husband, has been set aside.
Signature Not Verified
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By:VIKAS ARORA
Signing Date:01.03.2024
17:18:08
2. The facts, briefly stated are that the appellant/husband, a Pilot and
the respondent/wife, Air Hostess with Air India, got married on 28.02.1992
at Calcutta under the Act, 1954. From their wedlock, one son and one girl
were born on 28.09.1993 and 12.09.1995 respectively.
3. In November, 2003, the Appellant filed a Petition for Divorce under
Section 27(1)(d) of the Act, 1954 before the Additional District Judge, New
Delhi in which Notice dated 24.11.2003 was issued to the respondent/wife
for 08.01.2004. The Trial Court noted on 08.01.2004, that no Notice could
not be issued to the respondent/wife due to non-filing of the requisite
process fee. The learned Judge then directed a fresh Notice to be issued to
the respondent which was returnable for 26.02.2004.
4. The process fee was filed on behalf of the Appellant and notice of the
Petition was issued through summons as well as registered post, however,
the respondent failed to appear. Thereafter, on 15.03.2004, the learned Judge
observed as under: –
“None has appeared on behalf of the respondent despite
several calls being given at different intervals. It is
already 2:10. pm. Hence, responded is proceeded
exparte. For exparte evidence of the Appellant by way of
affidavit on 16.5.04”.
5. The respondent/wife was thus, proceeded ex parte and the ex parte
evidence was led by the appellant/husband. The ex parte Judgment dated
24.03.2005 consequently followed.
6. After grant of divorce, the appellant/husband got married with one
Ms. Anshu Pahwa on 14.12.2006 who had a daughter from her first marriage
and the parties along with the daughter started residing together. The two
children of the parties also reside with the appellant/husband and Ms. Anshu
Signature Not Verified
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By:VIKAS ARORA
Signing Date:01.03.2024
17:18:08
Pahwa since 2005 and they are being taken care of by the appellant/husband.
7. The respondent/wife then filed an Application under Order IX
Rule 13 CPC dated 17.03.2007 for setting aside the ex parte Divorce
Decree. She had asserted before the learned Principal Judge, Delhi that she
never got served with the summons/notice of the Divorce Petition, either
through process server or through A.D. Card which also does not bear her
signatures.
8. The respondent/wife had further asserted that she came to know that
on 17.02.2007 through somebody in the Department of Personnel that her
husband i.e., appellant herein, had married with one lady, Ms. Anshu Pahwa.
On enquiry, she came across the Circular No. DPE/STF/166 dated
09.02.2007, whereby vide his Application dated 30.12.2006 to the
Department for deleting the name of the respondent from the Service Record
as he had taken divorce from his first wife, on 24.03.2005. The
appellant/husband had later submitted his Application dated 22.01.2007
wherein he declared that he was married to Ms. Anshu Pahwa on 14.12.2006
who had a daughter, Akanksha from her first marriage and that the name of
his second wife i.e., Ms. Anshu Pahwa be added in the Service Record.
9. The respondent/wife had asserted that she came to know about the
facts of second marriage only on 17.02.2007. She also stated that she was
residing with the appellant/husband on 18.02.2004 and was on duty at the
time when she was allegedly served and the Service report on the summons
as well as on the A.D. Card had been manipulated by the appellant/husband.
10. Therefore, it was claimed that the respondent/wife was never served
with the Notice of the Divorce Petition on 18.02.2004, as was observed by
the ld. A.D. J., Delhi.
Signature Not Verified
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By:VIKAS ARORA
Signing Date:01.03.2024
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11. The respondent/wife has further asserted that on coming to know
about the aforementioned Circular, she filed an Application under Section
7(1) of Right to Information Act, 2005 with GM (P) on 22.02.2007 and got
information about the Divorce Decree and also obtained the Marriage
Certificate of the second marriage.
12. The respondent/wife thus, engaged a Lawyer on 12.03.2007, who on
13.03.2007 inspected the court record and applied for certified copies
thereof on 14.03.2007 which were made available on 16.03.2007. The
respondent/wife thus moved an Application under Order IX Rule 13 read
with Section 151 of CPC, 1908 for setting aside the ex parte Judgment dated
24.03.2005.
13. The respondent/wife examined herself as PW1 in support of her
assertions. She also examined PW2/Deepak Jain, the Handwriting Expert to
prove that the summons and the A.D. Card did not have her signatures.
15. On merits, it was asserted that the respondent/wife was throughout
aware of second marriage and her claim brooks no credibility for want of
necessary details about the person who informed her on 17.02.2007 about
the second marriage of the appellant/husband.
Signature Not Verified
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By:VIKAS ARORA
Signing Date:01.03.2024
17:18:08
16. It is asserted that the respondent/wife was duly served with the
summons of the Divorce Petition and she deliberately did not defend the
Divorce Petition as she did not want to live with the appellant/husband. The
respondent/wife had been living separately from the appellant/husband and
the two children, who all throughout had been in his care and custody.
17. It is asserted that the respondent/wife was duly served through
registered A.D. Card and also with the summons of the Divorce Petition
through the process server which bear her signatures. It is claimed that the
respondent/wife used different signatures at different places for different
purposes, as per her own convenience. It is denied that the parties were
residing together or that the respondent/wife was not present at her house on
18.02.2004, when the summons was served upon her.
18. It is asserted that the respondent/wife, on receiving the summons in
the morning, got so infuriated that she called up the mother of the
appellant/husband at her residential telephone No. at 11:00 A.M. and soon
thereafter, she called the appellant/husband on his mobile number, hurling
abuses which fact can be verified from the telephone records of the parties.
19. It is further submitted that the respondent/wife was assigned duty on
the night flight on 18.02.2004 implying thereby that during the whole day
she was available at her residence on the said day.
20. It was thus, asserted that despite due service, the respondent/wife
intentionally did not contest the Divorce Petition and her Application Order
IX Rule 13 read with Section 151 of CPC, 1908 was liable to be dismissed.
21. Learned Principal Judge, Family Court. after due appreciation of
the averments made on behalf of both the parties and the evidence as led by
respondent/wife, observed that the A.D. Card did not bear the complete
Signature Not Verified
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By:VIKAS ARORA
Signing Date:01.03.2024
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address and had only the Pincode No. 110057. Therefore, there could not be
presumption of service through A.D. Card. Also, the purported signatures on
the summons was her name written in capital letters. It was thus, held that it
was difficult to hold that the respondent/wife was duly served with the
summons of the Divorce Petition. Consequently, the ex parte Judgment
dated 24.03.2005 was set aside vide Order dated 10.04.2018. The Divorce
Petition was listed to be tried on merits, after filing of the Written Statement
on behalf of the respondent/wife.
22. Aggrieved by the Order dated 10.04.2018 allowing the application
under Order IX Rule 13 CPC and setting aside the ex parte Divorce
Decree, the present Appeal has been preferred by the
appellant/husband.
23. Submissions heard from counsel for the parties and the
documents as well as the evidence perused.
24. Admittedly, Divorce Petition was filed on 22.11.2003 by the
appellant/husband under the Act, 1954. The service of the divorce petition
on the respondent/wife through summons and registered cover, was directed
to be served vide Order dated 13.02.2004 returnable on 26.02.2004.
25. The perusal of the record shows that the summons were duly served
upon the respondent/wife on 18.02.2004 as the summons had her name
though in capital letters. The service report was written by the Process
Server on the summons, which was received in the Court. However, the
Registered Cover was returned with the endorsement that the addressee was
not found at home, on 19.02.2004. The respondent was proceeded ex parte
vide Order dated 15.03.2004 and it was followed by the ex parte Divorce
Decree dated 24.03.2005.
Signature Not Verified
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By:VIKAS ARORA
Signing Date:01.03.2024
17:18:08
26. The first aspect for consideration is whether the respondent/wife was
duly served with the summons on 18.02.2004 and she had acknowledged the
summons by putting the letters of her name in capital as “Roopa
Ahluwalia”.
27. Undeniably, the report on the A.D. Card of the Registered Cover was
that the respondent/wife was out of station on 19.02.2004. There is no
challenge that she was on flight duty from the night of 18.02.2004 and thus,
would not have been available at her residence on the said date. The report
on the Registered Cover is correct and not under challenge; the respondent
was thus, not served through the Registered Cover.
28. The service may have not been effected on the respondent/wife
through Registered Cover, but the moot question is whether the
respondent/wife was served by the Process Server with the summons and the
copy of Divorce Petition on 18.02.2004, which had been challenged by the
respondent. She had claimed that she was on duty on 18.02.2004 and was
not available at her residence.
Whether Respondent was Available at her residence in Vasant Kunj on
18.02.2004:
29. What thus, needs to be considered is whether she was available at her
residence on 18.02.2004, when the summons was allegedly served upon her.
The respondent/wife had deposed in her testimony that she was not in Delhi
and was on flight duty, but later, she admitted that she had been kept on
stand-by and she did not remember if she has taken the night flight for
Jeddah, Saudi Arabia. Rather, her indecisive and wavering answer
establishes that she was not on the flight duty during the day, on18.02.2004
Signature Not Verified
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By:VIKAS ARORA
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17:18:08
as claimed by her. On the other hand, the appellant/husband has clarified
that the respondent/wife had taken a night flight on 18.02.2004. Therefore, it
has emerged from the evidence that in the morning of 18.02.2004 on which
date the summons were served upon the respondent/wife, she was available
at her residence, as has also been concluded by Ld. Principal Judge, Family
Court.
Fraud: Whether Parties were Residing Together and Report on Summons
manipulated by the Appellant/Husband:
30. The respondent/wife had further asserted that a fraud had been
committed upon her as during that time, she was cohabiting with the
appellant/husband. However, it has been noted by the learned Principal
Judge, Family Court that this assertion of the respondent/wife was belied
from the fact that marital discord had surfaced between the two sometime in
1997-1998 and the appellant/husband had been allotted an official
accommodation at C-2/26, Indian Airlines Colony, Vasant Vihar, New
Delhi, while the respondent/wife had moved to the tenanted accommodation
at Flat No. 7463, Sector-10, Pocket B, Vasant Kunj, New Delhi, as is
evident from the Memo of Parties annexed with the Petition where the
address of the appellant/husband and the respondent/wife had been given
differently as is indicated above. Thus, the assertion of the respondent/wife
that the parties were residing together in Vasant Kunj Flat at that time or that
there was a fraud committed by the appellant/husband in manipulating the
service report is not tenable.
31. The respondent/wife had further relied upon a Form which had been
filled up by the appellant/husband on 20.02.2004 for and on behalf of theSignature Not Verified
Digitally Signed MAT.APP.(F.C.) 186/2018 Page 8 of 13
By:VIKAS ARORA
Signing Date:01.03.2024
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respondent/wife, to corroborate her assertion that they were having cordial
relations and were residing together at that time. Merely because the
appellant/husband volunteered to render assistance to the respondent/wife by
filling up the Form for her on 20.02.2004 especially when admittedly they
both were working the same office, it cannot be a basis to conclude that the
parties were residing together.
32. It is specifically averred by the appellant/husband that the
respondent/wife had separated and he along with the children, was living
separately from her. This fact has not been controverted by the
respondent/wife that the children have been in the care and custody of the
appellant/husband and that after his second marriage, his second wife and
her daughter have also started residing with the appellant/husband. The
evidence as brought on record, clearly reflects that the parties at the
relevant time in 2004 were not residing together as has also been the
conclusion of the learned Principal Judge, Family Court.
Signatures of Summons of the Respondent in Capital Letters:
33. The next question which arises is whether the respondent/wife was in
a habit of writing and signing differently as capital „ROOP‟ or „R
Ahluwalia‟ or „Roopa Ahluwalia‟ or running „Roop Ahluwalia‟, as had been
claimed by the Appellant.
34. The respondent/wife was confronted in her cross-examination with
the Crew Baggage Declaration Form Ex.PW1/R1 to PW1/R3 and also
Ex.PW1/R4 which had the signatures at Points „A‟, „B‟, „C‟ and „D‟
respectively. In the document PW1/R1 and PW1/R2, her name was written
in capital, while in Ex.PW1/R3 and Ex.PW/R4, it was written as „R Walia‟.
Signature Not Verified
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By:VIKAS ARORA
Signing Date:01.03.2024
17:18:08
35. The learned Principal Judge observed that that PW1 testified without
any challenge, that this was the practice prevalent during the relevant time
whereby implying that writing their names in full in the Declaration Form
to supply details of personal baggage or belongings, the Forms were signed
or initialled by the incumbent concerned. It was thus, observed that as per
the practice, the Crew Baggage Declaration is meant to be an undertaking or
declaration by the Air Hostesses/Crew Attendants regarding their personal
belongings viz., mobile, wallet, money, cosmetics etc. that they carry at the
time of embarking on flight outside India. The Embarkation Crew Baggage
Declaration contained the name of the respondent/wife as “Roopa
Ahluwalia” in full, but while signing she had just put her initials.
36. Learned Principal Judge, Family Court observed that in her affidavit
Ex. PW1/A and also her testimony in the Court on 18.03.2009 and on
06.01.2010, aside from the vakalatnama in favour of her lawyer, the
respondent had signed her name in Capital letters as “Roopa Ahluwalia”.
37. This clearly reflects that the respondent/wife had signed differently on
different documents. Thus, we observe that the evidence of the respondent
corroborated that at times she used to sign her name in Capital Letters.
Report of Handwriting Expert:
38. The next aspect for consideration is whether the signature of the
respondent/wife on the summons on which her signatures are by way of her
name written in capital letters, had been manipulated. The respondent had
claimed that her name had been written by the appellant/husband and not by
her.
39. In this regard, the respondent/wife had also examined PW2/Deepak
Signature Not Verified
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By:VIKAS ARORA
Signing Date:01.03.2024
17:18:08
Jain, the Handwriting Expert who in his Report, Ex. PW2/C had opined that
the questioned handwriting on the summons (of the name of the
respondent/wife) in caps to be in the handwriting of the appellant/husband.
The learned Principal Judge disbelieved the testimony of the PW2/Deepak
Jain, the Handwriting expert, by observing as under: –
“PW-2 was nailed in his cross-examination since he did not
examine the questioned signatures/writings of the applicant
wife from any document bearing the signatures/writings of the
applicant wife executed, written or signed in the past in the
ordinary course of business, and bare perusal of the material
examined by PW-2 would show that the applicant wife had
signed differently while giving her specimen signatures, and
thereby attempting to substantiate her case that the notice /
summons marked ‘B’ did not bear her signatures. Though PW-2
tried to wriggle out of such situation, on the Ld. Judge asking
him a pointed query, it came out that the letter „R‟ in Roopa and
„A‟ in Ahluwalia were signed by her differently. Moreover, it is
clearly deciphered from his testimony and the documents on the
record that the letters „PA‟ in “Roopa” and „Hluwalia‟ in
“Ahluwalia” were signed starkly differently from her previous
hand writing in the Crew Baggage undertaking PW 1/R-1,
PW1/R-2 PW-1/R-4.”
40. What emerges from his testimony is that the Handwriting Expert had
picked up the admitted signatures of respondent/wife from a photocopy. It is
the fundamental principle that the signatures for the purpose of comparison,
must be taken from the original document. A weak explanation is sought to
be given by PW2/Deepak Jain who has submitted that while the disputed
signatures are required to be taken from the original document, however, in
case of an undisputed signature, there is no possibility of any deviation of
the distortion/deviation even from a Photostat copy.
41. From the testimony of PW2/Deepak Jain, the Handwriting expert, it is
Signature Not Verified
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evident that the admitted signatures of the respondent/wife had been picked
up from a document which was a photocopy. Thus, the report of PW2 is not
reliable and has also been rightly discarded by the Ld. Principal Judge,
Family Court.
Incomplete Address on the Summons:
42. The only aspect which was held to be against the appellant/husband
was that the summons did not bear the complete address as the name of the
Locality Vasant Kunj was not indicated on the summons.
43. In this regard, we may observe that the summons had the complete
details of Flat and Block number except that the name of locality „Vasant
Kunj‟ was not mentioned. The respondent/wife also in her testimony had
admitted that the address was complete. What was however, mentioned was
Pincode-110057.
44. In this regard, it may be observed that the process servers are
dedicated for effecting the services for particular area. Moreover, even
though the name of the colony Vasant Kunj was not specifically mentioned,
but the Pincode-110057 is a sure indicator of the locality where the house
is situated. The summons also mentioned that the copy of the CA annexed
with it, was delivered. Moreover, the summons had the endorsement of the
service of the process server which is supported by his oath. There is a
presumption of correctness of the act done by an official in discharge of his
official duty in terms of Section 114 of the Indian Evidence Act, 1872,
which has not been rebutted by the respondent.
Conclusion:
45. The Learned Principal Judge had accepted all the factors in favour of
Signature Not Verified
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By:VIKAS ARORA
Signing Date:01.03.2024
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the appellant including that the respondent was living separately at Vasant
Kunj and was available at her residence at the time of service of summons
on which duly had her name written by her in acknowledgement of having
received the summons, but faltered on the ground of the name of the locality
had not been mentioned but overlooked that Pin Code is the sure indicator of
the locality. The respondent/wife has not been able to dislodge the service of
summons through Process Server at her residence which had been received
by her. The overwhelming circumstances establish by preponderance of
evidence, that the summons had been duly served upon the respondent.
46. We conclude that the summons of the Divorce Petition was served to
the respondent on 18.02.2004 despite which she failed to appear and had
been rightly proceeded ex parte.
47. Accordingly, the present Appeal is allowed and the Order dated
10.04.2018 vide which the Application under Order IX Rule 13 read with
Section 151 of CPC, 1908 filed by the respondent/wife has been allowed is
set aside thereby restoring the ex parte Judgment dated 24.03.2005 granting
divorce in favour of the appellant/husband.
48. Accordingly, the present Appeal along with pending applications is
disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
(SURESH KUMAR KAIT)
JUDGE
FEBRUARY 27, 2024
S.Sharma
Signature Not Verified
Digitally Signed MAT.APP.(F.C.) 186/2018 Page 13 of 13
By:VIKAS ARORA
Signing Date:01.03.2024
17:18:08
