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Decided On: 24.07.202 vs Arti on 24 July, 2021

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO(HMA) No.440 of 2018
Decided on: 24.07.2021
_
Vijay Kumar ….Appellant
Versus

.

Arti ….Respondent

_
Coram:

The Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?1yes.

_
For the Appellant: Mr. Lovneesh Kanwar, Advocate.

For the Respondent: Mr. Devender Thakur, Advocate.

(Through Video Conferencing)

Sandeep Sharma, Judge
CMP No.2475 of 2020

By way of instant application filed under Order 41

Rule 27 of CPC, permission has been sought by the

applicant/appellant to place on record certified copy of zimni

orders passed in the proceedings under S.125 CrPC filed by the

respondent, as well as certified copy of process fee given by the

respondent for the service of the appellant to demonstrate that

the non-applicant/respondent-wife, was fully aware that the

petitioner-husband resides in Sonepat, Haryana and not at the

address given by her in the memo of petition filed by her for

divorce in the Court of learned Additional District Judge,

Haryana. Aforesaid prayer having been made by the

applicant/appellant has been resisted by non-

1 Whether reporters of the local papers may be allowed to see the
judgment?

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2

applicant/respondent by filing reply to the application, wherein,

otherwise, factum with regard to furnishing of address of

Sonepat, Haryana by respondent-wife in the proceedings filed

.

under Section 125 Cr.P.C, has not been denied.

2. Having heard learned counsel representing the

parties and perused the pleadings adduced on record in the

instant application as well as documents intended to be placed

on record, this Court is of the view that documents intended to

be placed on record by way of additional evidence, are not only

relevant, but may be very crucial for adjudication of the appeal

having been filed by the petitioner-husband. Since, documents

intended to be placed on record by way of additional evidence are

certified copies of zimni orders passed by learned Court below in

the proceedings initiated by respondent-wife under Section 125

Cr.P.C., same otherwise being public documents can be always

taken into consideration unless authenticity of the same is

seriously disputed by opposite party.

3. As has been observed above, in the case at hand,

respondent-wife has nowhere disputed that in the proceedings

filed under Section 125 Cr.P.C, she had not shown petitioner-

husband as a resident of Sonepat, Haryana.

4. Consequently, in view of the above, present

application is allowed and the relevant documents intended to be

placed on record, as annexed with the application, are ordered to

be taken on record. Application stands disposed of.

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FAO(HMA) No.440 of 2018

5. Appellant being aggrieved and dissatisfied with the

judgment and decree dated 13.06.2018, passed by the Court of

.

learned Additional District Judge, Hamirpur, District Hamirpur,

H.P., in HMA Petition No.71 of 2017, titled Arti vs. Vijay Kumar,

whereby the petition having been filed by the appellant, under

Section 13 (I)(ia)(ib) of Hindu Marriage Act, 1955 for dissolution

of marriage by a decree of divorce, came to be partly allowed on

the ground of cruelty, has approached this Court by way of

instant appeal, filed under Section 28 of the Hindu Marriage Act,

1955, praying therein for setting aside the judgment and decree

dated 13.06.2018, passed by the Court of learned Additional

District Judge, Hamirpur, District Hamirpur, H.P.

6. Facts, in brief as emerge from the record are that

the marriage of appellant and respondent was solemnized on

27.09.2014, according to Hindu rites and customs, at Village

Bharnot, Post Office Dugli, Tehsil Bhoranj, District Hamirpur,

H.P. Parties to lis, lived happily after their marriage for about 1

½ years and thereafter, they separated on account of certain

differences. Respondent-wife, subsequently, filed divorce petition

on the ground of cruelty, alleging therein that petitioner-

husband, kept her nicely for about 1 ½ years, but thereafter,

started harassing her mentally, physically, economically,

financially and emotionally. She also alleged that she was

maltreated, teased and taunted for bringing less dowry and the

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petitioner also gave her beatings in the influence of liquor and as

such, she be granted divorce on the ground of cruelty.

7. Since, despite service, petitioner-husband failed to

.

appear before learned Court below, he was proceeded ex parte.

Learned Court below on the basis of evidence led on record by

respondent-wife, allowed the divorce petition having been filed by

her, partly and ordered to dissolve the marriage inter se

petitioner-husband and respondent-wife by way of decree of

divorce on the ground of cruelty. In the aforesaid background,

petitioner-husband, has approached this Court in the instant

proceedings, praying therein to set aside the aforesaid judgment

and decree dated 13.6.2018, passed by the Court of learned

Additional District Judge, Hamirpur, H.P.

8. Precisely, the case of the petitioner-husband is that

learned Court below wrongly proceeded him ex parte, because

report given on summons by process-servers, nowhere, suggests

that petitioner was duly served, rather, in two reports, furnished

by the Process Serving Agency, it was categorically informed that

petitioner-husband does not reside on the given address and at

present he resides in Sonepat, Haryana/Delhi.

9. Mr. Lovneesh Kanwar, learned counsel representing

the petitioner-husband, while making this Court to peruse the

record, argued that despite there being specific report of the

Process Serving Agency that petitioner-husband resides in

Sonepat, Haryana, learned Court below permitted respondent-

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wife, to serve the petitioner by way of publication in a newspaper,

which was only circulated in District Kangra, H.P. and as such,

no service, if any, can be said to have been effected upon

.

petitioner-husband by way of publication. Mr. Kanwar, further

contended that respondent-wife besides filing the petition for

divorce, also filed a petition under Section 125 Cr.P.C for grant of

maintenance before learned Judicial Magistrate, Ist Class, Court

No.IV, Hamirpur, District Hamirpur, H.P., wherein, she had given

address of Sonepat, Haryana, while taking steps for the service of

petitioner-husband and as such, it cannot be said that she was

not aware of actual address of petitioner-husband. Lastly, Mr.

Kanwar, contended that since respondent-wife before filing of

the petition under Section 125 Cr.P.C and divorce petition at

hand, had resided with petitioner-husband for a considerable

time at Sonepat, Haryana, it cannot be accepted that she was not

aware of the actual address of petitioner-husband, but she

purposely, with a view to ensure absence of petitioner-husband

from the trial instituted at her behest, not furnished correct

address and gave address of the village in District Hamirpur,

where none of the family member of petitioner-husband resides.

10. While supporting the impugned judgment and decree

of divorce passed by learned Court below, Mr. Devender Thakur,

learned counsel representing respondent-wife, contended that

once petitioner was duly served by way of publication, it cannot

be said that proper service of notice was not effected upon him.

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11. Having heard learned counsel for the parties and

perused the material available on record, this Court finds that

pursuant to the divorce petition filed by respondent-wife, notice

.

came to be issued to petitioner-husband on the address given in

the divorce petition, which was admittedly of District Hamirpur,

H.P. and not of Sonepat, Haryana. The report of Process Serving

Agency, pursuant to the notice issued by learned Court below for

21.09.2017, clearly reveals that none was found on the given

address and witnesses on the spot informed the process server

that petitioner-husband, son of Shri Duni Chand, resides in

Sonepat, Haryana/Delhi. Pursuant to aforesaid report submitted

by the process server, dated 26.8.2017, matter again came to be

posted before learned Court below, which again issued notice on

the address given on the memo of the appeal for 22.01.2018,

wherein, again process server reported that petitioner-husband,

Vijay Kumar does not reside on the given address and at present,

as per information given to him, he resides at Sonepat,

Haryana/Delhi.

12. After having seen aforesaid reports given by process

server dated 26.8.2017 and 22.11.2017, respondent-wife filed an

application under Order 5 Rule 20 CPC, praying therein for service

of the petitioner by way of publication. Learned Court below

permitted the respondent-wife to serve the petitioner-husband by

way of publication in daily newspaper ‘Amar Ujala’. Notice

published in aforesaid newspaper clearly reveals that the Court

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Notice was published in daily newspaper, Dharamshala Edition

on 9.3.2018, meaning thereby intimation with regard to lodging

of the case by respondent-wife and posting thereof on 23.3.2018,

.

was only circulated in District Kangra, whereas, process servers

in their two reports had categorically reported that petitioner-

husband resides at Sonepat, Haryana/Delhi. Since in both the

reports, process servers categorically reported that as per

information given to him, petitioner-husband resides at Sonepat,

Haryana/Delhi, learned Court below while permitting

respondent-wife to serve the petitioner-husband by way of

publication ought to have ordered for the publication of notice in

newspaper having wide circulation in Sonepat /Delhi. Once, it

had come to the notice of the Court by way of report filed by the

process servers that petitioner-husband does not reside at the

address given in the memo of the appeal and he resides at

Sonepat/Delhi, it ought not have permitted respondent-wife to

serve petitioner by way of publication in daily newspaper ‘Amar

Ujala’, Dharamshala Edition. Mere fact that intimation with

regard to filing of the divorce petition and posting of the matter

on 23.3.2018, was published in daily newspaper ‘Amar Ujala’,

Dharamshala Edition, does not mean that petitioner had became

aware of posting of the matter in the Court on 23.3.2018,

especially, when it stands proved by the report of the process

server that at present petitioner-husband resides at Sonepat,

Haryana/Delhi.

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13. Leaving everything aside, this Court finds that prior

to filing of the petition at hand, respondent-wife had instituted

proceedings under Section 125 Cr.P.C, praying therein for

.

maintenance, wherein, she herself had given address of Sonepat,

Haryana/Delhi, meaning thereby, she was fully aware of address

of petitioner-husband, but despite that she purposely, to ensure

absence of petitioner-husband from the case instituted by her

and with a view to obtain ex parte decree, furnished address of

District Hamirpur, where none of the family member of the

petitioner-husband resides, as has been reported by process

servers in two reports.

14. Provisions of Order V, Rule 20 CPC can only be

invoked when Court is satisfied that the defendant is keeping out

of the way for the purpose of avoiding service, or that, for any

other sufficient reason the summons cannot be served in the

ordinary way, at the first instance court shall order that a copy

of the summons be affixed in some conspicuous place in the

Court house, and also in some conspicuous place of the house, if

any, in which the defendant is known to have last resided, or

carried on business, or personally worked for gain, or in such

other manner as the Court thinks fit. Order V rule 20 (1)A

empowers a Court to serve the person by way of advertisement in

the newspaper but such newspaper shall be a daily newspaper

having circulations in the locality, in which the defendant is last

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known to have actually and voluntarily resided, carried on

business or personally worked for gain.

15. In the case at hand, it had come categorically in the

.

report of process server on two occasion that petitioner’s

husband does not reside at given address rather, resides at

Sonepat, Haryana/Delhi, meaning thereby Court while

permitting respondent-wife to serve the petitioner-husband by

way of publication ought to have ordered the publication of

notice in daily newspapers having circulation in the locality

where defendant is
r actually residing or have lastly and

voluntarily resided i.e. Sonepat, Haryana. Since, it stood clarified

from the report of process server that the petitioner-husband

resides in Snoepat/Delhi, Haryana, he could not be served by

way of publication in newspaper having circulation in Kangra

District, whereas, publication if any ought to have been made in

the newspaper having circulation in Sonepat, Haryana/Delhi.

16. Consequently, in view of the facts and circumstances

narrated above, this Court finds it difficult to conclude that

petitioner-husband was served in divorce petition, having been

filed by respondent-wife, rather careful perusal of the material

available on record, especially, report of the process servers and

factum with regard to filing of address of Sonepat in the

proceedings filed under Section 125 Cr.PC filed by the

respondent-wife, reveals that petitioner was not residing at the

address given in the memo of appeal and respondent-wife despite

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having known address of Sonepat, Haryana, intentionally and

willfully failed to serve petitioner-husband on the address of

Haryana and as such, ex parte decree of divorce granted by

.

learned Court below on the ground of cruelty against the

petitioner-husband cannot be allowed to sustain.

17. In view of the above, the judgment and decree dated

13.06.2018, passed by the Court of learned Additional District

Judge, Hamirpur, District Hamirpur, H.P., in HMA Petition No.71

of 2017, titled Arti vs. Vijay Kumar, is quashed and set aside and

the case is remanded back to learned Court below to decide the

same afresh after affording opportunity of being heard to

petitioner-husband. Learned counsel representing both the

parties undertake to cause presence of the parties to lis before

the learned Court below on 12.08.2021, enabling it to proceed

with the divorce petition having been filed by the respondent-wife

afresh.

18. Since, both the parties have undertaken to appear

before learned Court below on the given date, there is no

necessity to issue notice by the Court below for the given date.

Since, the case is hanging in fire for almost 4 years, this Court

hopes and trusts that the Court below would make all out efforts

to conclude the trial expeditiously, preferably within six months.

Record of learned Court below be sent back forthwith. Needless

to say, learned Court below shall afford due opportunity to the

appellant to file reply to the petition.

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19. The instant appeal is disposed of in the aforesaid

terms. Pending applications, if any, are also disposed of.

.

(Sandeep Sharma)
24th July, 2021 Judge
(reena)

r to

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