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Smt.Lalita vs Hemant Kumar on 16 March, 2018


(Smt. Lalita Vs. Hemant Kumar)
Shri Jitendra Verma, learned counsel for the appellant.
Shri P.R. Bhargava, learned counsel for the respondent.
The appellant has filed the present appeal being
aggrieved by the order dated 24.08.2013, passed by the 3 rd
Additional District Judge, Mandsaur by which he has rejected
the application filed under Order 9 Rule 13 read with Section
151 of the CPC along with an application under Section 5 of
the Limitation Act, 1963.

of the case, in short, are as under:

2. The marriage of the appellant and respondent was
solemnized under the Hindu Customs and Rituals on
21.11.1996. After marriage, the matrimonial disputes started
between them and because of which, they had separated from
each other and started living separately. The appellant filed an
application under Section 125 of the Cr.P.C. before the
Additional Judicial Magistrate First Class, MHOW which was
registered as Criminal Case No.78/2005. By order dated
26.04.2006, the Court has fixed the interim maintenance @
Rs.1,500/- per month. During the pendency of the said case, in
the cross-examination, counsel for the respondent has
produced the copy of judgment and decree dated 18.07.2005
passed in Hindu Marriage Case No.12/2004 by which an ex-
parte decree of divorce has been granted.

3. According to the appellant, first time she came to know
about such ex-parte decree of divorce, then she immediately

applied for certified copy of the same and collected other
papers and filed an application under Order 9 Rule 13 of the
CPC along with an application under Section 5 of the
Limitation Act for setting aside the ex-parte judgment and
decree dated 18.07.2005. Since, application under Order 9
Rule 13 of the CPC could not be filed within 30 days from the
date of knowledge i.e. 17.01.2008, therefore, she filed an
application under Section 5 of the Limitation Act for
condonation of delay.

4. After notice, the respondent appeared before the Court
and submitted that the notices sent to the appellant were
returned. Thereafter, the Court had directed for service of
notice by way of affixture and despite that, when she did not
appeared before the Court, then the Court has ordered for
issuance of notice by way of paper publication. Despite
publication, she did not appeared and was proceeded ex-parte
and Court has passed the ex-parte decree, hence, application
under Order 9 Rule 13 is liable to be rejected.

5. Learned Trial Court has recorded the statement of the
appellant as PW1 and respondent as DW1. The learned Trial
Court has declined to condone the delay in filing the
application and also dismissed the application on merits also.
Hence, present appeal before this Court.

6. Shri Jitendra Verma, learned counsel for the appellant
submitted that the learned Trial Court while proceeding ex-
parte against the appellant did not followed the procedure
prescribed under Order 5 Rule 17 of the CPC, therefore, the
ex-parte decree dated 18.07.2005 is liable to be set aside. He
further submitted that if the appellant had refused to receive

the service of summon, then same ought to have been affixed
in the presence of witnesses and report has to be enclosed by a
notice server in that regard. The Trial Court has not conducted
any inquiry regarding service of summon on the appellant as
also regarding the refusal of summon reported by service
officer. Since, the mandatory requirement of Order 5 Rule 19
has not been followed, therefore, the ex-parte decree is liable
to be set aside. In support of his contention, he has placed
reliance over the judgment passed in the case of Rajendra
Mahadik Vs. Devendra Mahadik, reported in 2014(3) MPLJ
659 Baijnath Mishrilal Kachhi Vs. Harishanker S/o
Mishrilal Others, reported in 2001(2) MPLJ 142. He
submits that the appellant is still willing to live as a wife with
the respondent. The respondent has not performed second
marriage so far, therefore, ex-parte decree be set aside and
matter be remitted back to the Trial Court to decide afresh.

7. Per contra, Shri P.R. Bhatnagar, learned counsel for the
respondent submitted that despite the date of knowledge of ex-
parte judgment and decree passed on 18.07.2005, the appellant
did not filed application under Order 9 Rule 13 within 30 days
and there was no valid justification for condoning the delay,
therefore, the learned Trial Court has rightly declined to
condone the delay. He further submitted that the notices were
sent by registered post by way of summon on three occasions,
but she has managed to returned them unserved. Thereafter,
notice was also published in the newspaper which is a deeming
service to her hence the Court has rightly proceeded ex-parte
and passed the decree. The matrimonial relation between
appellant and respondent has come to an end. She hardly lived

for more than 6 months at one stretch with him and thereafter,
they are living separately. The divorce decree has been passed
in the year 2005. There is no possibility of reunion between
them, therefore, in the facts and circumstances of the case, the
appeal may kindly be dismissed.

8. Keeping in view the facts and circumstance in totality
the appeal filed by the appellant-wife deserves to be dismissed
because the marriage between appellant and respondent was
solemnized on 21.11.1996 and according to the respondent, the
appellant/wife has deserted him on 09.06.2003 and started
living in the house of her brother. During the said period, she
was treated in the R.K. Hospital due to infertility and her
behaviour was cruel because she was not medically fit to
deliver the child. The respondent/husband made various
efforts to bring her back but all have failed. She has falsely
lodged the report under Section 498-A against him as he
demanded the dowry. He served a legal notice which was not
replied by her, therefore, he filed petition for divorce before
the Court.

9. In the divorce case, respondent gave address of
appellant where she was residing along with her parents. The
appellant has not disputed that the address given in the divorce
petition is incorrect or the notice were sent to the address
where she was not residing. The same address, she gave in this
appeal also, therefore, there is no dispute about the address
given in the divorce petition and notices were sent to the same
address. The summons sent by the Court to the appellant were
returned with a noting that despite information given to the
addressee, she was not available in the house. The second

notice was also returned with the noting that at the time of
distribution she was not available at home. She was not
residing alone in the said address, as other family member
could have received the notice on her behalf if she was not
available. Thereafter, she was served by way of paper
publication in the daily newspaper “Dainik Swadesh” having
circulation in the MHOW city.

10. She has admitted in the cross-examination that the
address mentioned in exhibit D/1, D/3 and D/4 is the same in
which she is residing. The notices were sent through UPC.
The Court has ordered for affixation and service of notice by
paper publication, therefore, the learned 3rd Additional District
Judge has rightly came to the conclusion that she refused to
receive the summon sent by the Court . The notice published
in the daily news paper is deemed to have been served to her.

11. This Court has made effort for settlement between the
parties by way of mediation, but the same has also failed. The
husband and wife are living separately since 2003 i.e. more
than last 15 years. The divorce decree dated 18.07.2005 is in
effect since last 13 years. Even if the mode provided under
Order 5 Rule 17 19 has not been followed, no useful
purpose would be served to remand the case back to the trial
Court for re-trial because that would years together again to
decide the same.The Apex Court in case of K.Srinivas Rao Vs
D A Deepa reported in (2013)5SCC226 has held that when the
parties are living separately since so many years and efforts of
settlement has been failed then it can be held that marriage is
irretrievable then decree for divorce ought to have been
granted. The relevant paras are reproduced below:-


30. It is also to be noted that the appellant husband and
the respondent wife are staying apart from 27-4-1999. Thus,
they are living separately for more than ten years. This
separation has created an unbridgeable distance between the
two. As held in Samar Ghosh Vs Jaya [(2007)4SCC511], if we
refuse to sever the tie, it may lead to mental cruelty.

31. We are also satisfied that this marriage has irretrievably
broken down. Irretrievable breakdown of marriage is not a
ground for divorce under the Hindu Marriage Act, 1955. But,
where marriage is beyond repair on account of bitterness
created by the acts of the husband or the wife or of both, the
courts have always taken irretrievable breakdown of marriage
as a very weighty circumstance amongst others necessitating
severance of marital tie. A marriage which is dead for all
purposes cannot be revived by the court’s verdict, if the parties
are not willing. This is because marriage involves human
sentiments and emotions and if they are dried up there is
hardly any chance of their springing back to life on account of
artificial reunion created by the court’s decree.

32. In V. Bhagat Vs D Bhagat [(1994)1SCC 337 this Court
noted that divorce petition was pending for eight years and a
good part of the lives of both the parties had been consumed in
litigation, yet the end was not in sight. The facts were such that
there was no question of reunion, the marriage having
irretrievably broken down. While dissolving the marriage on
the ground of mental cruelty this Court observed that: (SCC p.
351, para 21)
“21. … Irretrievable breakdown of the marriage is not a
ground by itself. But, while scrutinising the evidence on record
to determine whether the ground(s) alleged is/are made out and
in determining the relief to be granted, the said circumstance
can certainly be borne in mind.”

33. In Naveen Kohli Vs Neelu kohli [(2006)4SCC558] ,
where the husband and wife had been living separately for more
than 10 years and a large number of criminal proceedings had
been initiated by the wife against the husband, this Court
observed that: (SCC p. 582, para 86)
“86. … The marriage has been wrecked beyond the hope of
salvage [and] public interest and interest of all concerned lies in
the recognition of the fact and to declare defunct de jure what is
already defunct de facto.”

It is important to note that in Naveen Kohli Vs Neelu kohli
[(2006)4SCC558] this Court made a recommendation to the
Union of India that the Hindu Marriage Act, 1955 be amended
to incorporate irretrievable breakdown of marriage as a ground
for the grant of divorce.

34. In the ultimate analysis, we hold that the respondent wife
has caused by her conduct mental cruelty to the appellant
husband and the marriage has irretrievably broken down.
Dissolution of marriage will relieve both sides of pain and
anguish. In this Court the respondent wife expressed that she
wants to go back to the appellant husband, but, that is not
possible now. The appellant husband is not willing to take her
back. Even if we refuse decree of divorce to the appellant
husband, there are hardly any chances of the respondent wife
leading a happy life with the appellant husband because a lot of
bitterness is created by the conduct of the respondent wife.

35. In Vijaykumar Vs Neela [ (2003)6SCC334], it was
submitted that if the decree of divorce is set aside, there may be
fresh avenues and scope for reconciliation between parties. This
Court observed that judged in the background of all surrounding
circumstances, the claim appeared to be too desolate, merely
born out of despair rather than based upon any real, concrete or
genuine purpose or aim. In the facts of this case we feel the

12. Hence the appeal fails and is hereby dismissed.

jasleen Judge

Digitally signed by
Jasleen Singh Saluja
Date: 2018.03.22
16:14:30 +05’30’

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