http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: MRS. PAYAL  ASHOK KUMAR JINDAL

       Vs.

RESPONDENT: CAPT. ASHOK KUMAR JINDAL

DATE OF JUDGMENT06/05/1992

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) KANIA, M.H. (CJ)

CITATION:  1992 SCR  (3)  81        1992 SCC  (3) 116  JT 1992 (4)    28        1992 SCALE  (1)1079

ACT:      Family Court’s Act, 1984 : Section 10.      Hindu Marriage Act, 1956 : Section 13.      Code  of Civil Procedure, 1908 Or 5. Rule 9, 10  and  9 rule 6.      Constitution of India, 1950 : Articles 136 and 142.      Divorce  proceedings  against wife Family  Court  Pune- Petition for transfer in Supreme Court by wife for  transfer of proceedings from Family Court Pune to Family Court Delhi- Petition   dismissed-Notices   by   Registered   Post    and substituted  service  by  Newspaper  publication  made   for appearance  of  wife-Non appearance of  wife-Set  ex  parte- Divorce  decree granted to husband-Application by  wife  for setting   aside   ex   parte   decree-Dismissed-High   Court confirming  the  dismissal order-Appeal by wife  to  Supreme Court-Allowed-Held  sufficient  cause  for  non  appearance- Exparte decree set aside-Case transferred to  Family  Court, Bombay.

HEADNOTE:      The  parties to the appeal were married on January  24, 1988  at Noida near Delhi. They hardly lived as husband  and wife at Pune for about seven months when on August 16,  1988 the husband-Respondent filed a petition under Section 13  of the  Hindu  Marriage  Act,  1956  for  dissolution  of   the marriage on the ground of cruelty.  He alleged that the wife had  a  habit of  smoking and drinking and  even  once  came drunk   to  the  house  and  abused  everybody.   The   wife vehemently denied the allegations  and claimed that she  was a  homely, vegetarian, non-smoking, teetotaler and  faithful house-wife.      During the pendency of the aforesaid divorce-proceeding before the Family Court,Pune, the wife filed a petition,  on May 1, 1989, before this Court seeking transfer of the  case from   the Family Court, Pune to Delhi.  This Court  granted ad interim stay of the proceedings which remained  operative till  September  11,  1989 when the  Transfer  Petition  was dismissed                                                  82 and the stay become vacated.      Thereafter,  the  husband appeared  before  the  Family Court  on  September  15, 1989  whereas  the  wife  remained

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

absent.  Notice were sent by registered post to the wife  on her address at Noida and also at her Delhi address given  in the proceedings before this Court.   The notices having come back with the remarks "not found", the Family Court  ordered sub-stituted service, and a notice was published in a  Delhi daily newspaper asking the wife to appear before the  Family Court on November 16, 1989.  The wife not having appeared on the said date the Family Court ordered ex-parte proceedings. The issues were framed on November 21, 1989, evidence of the husband  was recorded on November 25,1989 and  the  judgment was pronounced on November 30, 1989, granting the husband  a divorce decree.      The  wife filed an application dated December 18,  1989 for setting aside the ex-parte divorce-decree. She contended that  she was forced to leave the matrimonial home  at  Pune and  was  residing with her parents at Noida,  and  that  in October/November,  1989  she  had gone to  reside  with  her brother  at Delhi, that she applied to the Army  Authorities claiming  maintenance out of her husband’s salary, and  that the  Army Authorities sent a letter dated December 14,  1989 to her father informing that the application for maintenance could not be entertained as the husband had already obtained a divorce decree from the Court.  She further contended that for the first time on or about December 14, 1989 she came to know  from her father that her husband had been  granted  an ex-parte divorce decree by the Family Court.      The Family Court dismissed the  application for setting aside ex-parte divorce-decree, and the High Court upheld the reasoning  and conclusions reached by the Family  Court  and dismissed  the  appeals  filed by the  wife.      In  the  appeal  to  this Court  by  the  wife  it  was contended  that:  (1) The Family Court and  the  High  Court grossly  erred  in dismissing the application filed  by  the appellant  for setting aside the ex-parte  proceedings;  (2) the  divorce  petition  should have been  dismissed  as  not competent  in terms of Section 14 of the Hindu Marriage  Act as the Statutory period of one year had not lapsed since the date of marriage, (3) even on merits the  divorce-decree  is based  on  no  evidence, the  allegations  in  the  divorce- petition                                                    83 being  wholly vague, and (4) the High Court acted  illegally in  substituting the decree of divorce to that of  a  decree for judicial separation.      Allowing the Appeal, this court,      HELD:  1. The appellant filed written statement  before the  Family Court,Pune denying the allegations made  against her   by  the  respondent.  She  also   raised   preliminary objections  regarding  the maintainability  of  the  divorce petition.   Though her transfer petitions before this  Court were dismissed in September,  1989 and on April 12, 1990 and that she did not approach the High Court for transfer of her case,   the  fact  remains  that  she  has  been   seriously contesting the divorce  proceedings and it would not be fair to  assume that she deliberately chose to abstain  from  the Family Court, and was intentionally avoiding the summons.      2. In  the facts and circumstances of this  case,  the appellant   was  justified  in  her  assumption   that   the proceedings  before the Family Court would be resumed  after fresh notice to the parties.  The applicability of the Rules of natural justice depends upon the facts and  circumstances of each case. Fair-play and the interest of justice in  this case required the issuance of a fresh notice to the  parties after the stay order was vacated by this Court.      3. The Family Court, sent two Registered notice to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

appellant at her Noida address and also at the address given by her in the proceedings before this Court.  Unfortunately, both  the  notices came back with the endorsements that  the appellant could not be found on the given addresses.  On the record  there is no material to reach a conclusion that  the appellant refused to receive the notices, or to show whether the  postal  authorities  made any efforts  to  deliver  the registered  letters to any of the appellants’  relations  at the  given addresses.  The Courts below are therefore wholly unjustified  in  holding  that   the  appellant  refused  to receive the notices and further that the said notices  could have  been  received by any of her relations  on  the  given addresses.      4.  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 not 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                                                    84 substitute  service by way of publication in  the  newspaper was  not justified.  There was,  therefore,sufficient  cause for  the non-appearance of the appellant in the  matrimonial petition before the Family Court.      5.  With  a  view to do complete  justice  between  the parties  it is directed that this case be  transferred  from the file of  the Principal Judge, Family Court, Pune to  the Principal  Judge, Family Court, Bombay, and the parties  are directed to appear before the Principal Judge, Family  Court Bombay.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2446  of 1991.      From  the Judgement and Order dated  11.10.1990 of  the Bombay High Court in F.A. No. 649 of 1990.      Mrs. C.M. Chopra for the Appellant.      Respondent in person.      The Judgment of the Court was delivered by      KULDIP  SINGH, J. His parents advertised for  "  homely non-medico"  bride.   Her parents responded.  Marriage  took place on January 24, 1988 at Noida near Delhi.  They  hardly lived  as husband and wife at Pune for about   seven  months when  on August 16, 1988 the husband filed a petition  under Section  13  of the Hindu Marriage Act  for  dissolution  of Marriage  on the ground of cruelty.  He alleged "she  had  a habit  of  smoking" and "it was found that she  was  in  the habit   of  drinking  and  even  once  came  drunk  to   the applicant’s house and abused everybody". He further  alleged "  it was found by the applicant that she was working  as  a model  prior  to marriage and he found few pictures  of  the respondent  in bikini and semi-nude clothes  in  magazines". She  vehemently denied the allegations and claimed that  the she  was a homely, vegetarian, non-smoking,  teetotaller and faithful house-wife.  The Family Court at Pune proceeded ex- parte and granted divorce-decree by the order dated November 30, 1989.  Wife’s application for setting aside the ex-parte decree  was dismissed by the Family Court on June 24,  1990. The  High  Court by its judgment dated October  10/11,  1990 unheld   the   findings  of  the  Family  Court   with   the modification  that  in place of decree  for  dissolution  of marriage it granted a decree for judicial separation.   This

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

appeal  by way of special leave is by the wife  against  the judgments of the courts below.                                                     85      During  the pendency of the divorce-proceedings  before Family  Court,  Pune, the wife filed a petition, on  May  1, 1989,  before this Court seeking transfer  of the case  from the  Family  Court, Pune to Delhi.  This  Court  granted  ad interim  stay  of the proceedings before the  Family  Court, Pune.   The stay remained operative till September 11,  1989 when this Court dismissed the transfer petition and  vacated the stay.  Thereafter the husband appeared before the Family Court  on  September  15, 1989  whereas  the  appellant-wife remained absent. Notices were sent by registered post to the wife  on her address at Noida and also at her Delhi  address given  by  her in the proceedings before  this  Court.   The notice  came back with the remarks "not found".  The  Family Court   ordered  substituted  service  and  a   notice   was published  in  the   "Times of India"  New  Delhi  of  dated October 24.1989 asking the wife to appear before the  Family Court on November 16, 1989 or the proceedings would be taken ex-parte.  On November 16, 1989 the Family Court ordered ex- parte  proceedings.  The issues were framed on  November  21, 1989,  the evidence of the husband was recorded on  November 25,  1989  and the judgment was pronounced on  November  30, 1989.      The  appellant filed an application dated December  18, 1989  for setting aside the ex-parte divorce-decree  wherein she   stated  that  after  she  was  forced  to  leave   her matrimonial-home at Pune, she was residing with her  parents at Noida.  She further stated that in October/November, 1989 she had gone to reside with her brother at Delhi.  According to  her  she  applied  to  the  Army  Authorities   claiming maintenance out of her husband’s salary.  Respondent-husband is  an  Army officer.  The Army Authorities  sent  a  letter dated   December  14,  1989 to her  father  wherein  it  was mentioned  that his daughter’s application  for  maintenance allowance  could not be entertained because the husband  had already obtained a divorce-decree from the court.  A copy of the  Family  Court Judgment granting divorce-decree  to  the husband  was  also annexed to the  letter.    The  appellant claims  that  for the first time, on or about  December  14, 1989,  She  came  to  know  through  her  father  that   the respondent  had  already been granted an  ex-parte  divorce- decree   by  the  Family  Court.   The  appellant   in   her application inter alia stated as under:-          "The  applicant submits that the applicant did  not          receive any notice/letter/summons or  communication          from  this Hon’ble Court’s office.  Even there  was          no intimation given by postal                                                      86          authorities and the applicant honestly states  that          till  the receipt of the letter from the Army  H.Q.          New  Delhi,  she  was  not aware  of  the  date  of          proceeding.   The applicant submits, the  applicant          was under bona fide belief that she will receive  a          notice  from this Hon’ble Court. As such and  being          far  from  Pune, either in Noida ( U.P.) or at  New          Delhi, it was not possible for her to approach this          Hon’ble  Court for any enquiry since she  was  also          not permitted to appear through the lawyer.......At          any  rate and in any event, the applicant also  did          not  come  across the public  notice  published  in          Times of India,  New Delhi on 24th October 1989  as          stated  in the decree.  The applicant submits,  the          applicant   had  every  intention  to  resist   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

        marriage  petition filed by the opponent since  the          same  was absolutely false, frivolous and  out  and          out  false, and has been resisted by the  applicant          by filing written statement, preliminary  objection          including  to approach the Supreme Court of  India.          The  intention  of the  applicant was  clear.   The          applicant  submits, the applicant was also  advised          by  her  Advocate that she will   receive  a  fresh          notice  in  due course of time after the  stay  was          vacated by the Hon’ble Supreme Court of India  from          this  Hon’ble  Court.  The  applicant  states,  she          resides at a far long distance from Pune.  She  was          also   refused  any  assistance  of  lawyer.    The          applicant has no relation or any representative who          can  look  after her in the present  proceeding  in          Pune.  It was in these circumstances, the applicant          was prevented by sufficient cause from appearing in          the  marriage petition proceeding No.561/89 and  as          such  the said decree is required to be  set  aside          ..... The applicant states, the applicant is unable          to  maintain herself, she has no source  of  income          ..... The applicant submits because of the  passing          of   ex-parte   decree,  she   has   been   refused          maintenance   allowance.  The applicant also  prays          for granting of maintenance allowance pending final          disposal of this application." The Family Court dismissed the application for setting aside ex-parte divorce-decree on the following reasoning:-          "But  where  the  party  itself  knows  that   stay          obtained  by it has been vacated, there appears  no          warrant for the proposition that again a notice  is          required to be given to the said party.  I do                                                   87          not think that such advice was really given to  the          applicant.   The  applicant has  not  produced  any          evidence  to  the  effect that  she  received  such          advice from a lawyer.  It is her own statement.  It          is  a  self-serving  statement and  can  hardly  be          believed.   I  think  that if   the  applicant  was          really  keen  and desirous to  contest  matrimonial          petition, she would have at once made enquiries  to          find  out as to when the next date for  hearing  in          this  court  was fixed after  her  application  for          transfer  of the case was dismissed by the  Supreme          Court  and the stay obtained  by her  was  vacated.          The  order of vacating the stay was passed on  11th          September 1989 by the Hon’ble Supreme Court and the          applicant  knew fully well about it.  The  opponent          who  had  also  appeared in the  Supreme  Court  in          connection of that matter did appear in this  Court          on 15.9.1989.  The record of P.A. No. 561/89  shows          that opponent applied for issuing of notice to  the          present  applicant.   The  notice  was  issued   by          registered post on two separate addresses.  One  of          the address was the one shown by applicant  herself          in Supreme Court petition and the other address was          the one which was admitted to be her address in the          matrimonial  petition  (which was  address  of  her          father  at Delhi). Both these notices were sent  by          registered  post in due course.  The  court  waited          till return of this notice.  On both these envelops          postal  authorities have endorsed that the  present          applicant  was not found on these  addresses.   The          opponent had, therefore, made application that  the          applicant  was  avoiding to take notice  and  hence

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

        substituted service by publishing in Times of India          be  made.  Accordingly, a notice was  published  as          per    order   of   the   Court    on    opponent’s          application......Thus   the   contention   of   the          respondent  that she had no notice of  the  further          proceeding  in  marriage petition does  not  appear          convincing.    As  stated  already  in  the   first          instance,  there was no necessity for her  to  wait          for receipt of the notice  in the circumstances  of          the  present case.  The notices sent to   her  were          obviously evaded, otherwise there was no reason why          the applicant was found on either of the  addresses          which she admits to be the correct addresses.  Even          if  she  was not present, there was no  reason  why          other  major members of the family did  not  accept          these  notices.  And lastly the publication of  the          notice                                                   88          in one of the  most widely circulated newspaper  at          Delhi was sufficient notice to the applicant."      The High Court upheld the reasoning and the conclusions reached by the Family Court and dismissed the appeals  filed by the wife.      The respondent appeared before us in person and himself argued  his  case.  The learned counsel  for  the  appellant raised the following points for our consideration:-      (a)  That the Family Court and the High  Court  grossly erred  in dismissing the application filed by the  appellant for setting aside the ex-parte proceedings;      (b)  That the divorce-petition was filed  hardly  seven months after the marriage.  Section 14 of the Hindu Marriage Act  provides  "it shall not be competent for any  court  to entertain  any petition for dissolution of a  marriage by  a decree of divorce, unless at the date of the presentation of the  petition  one year has elapsed since the  date  of  the marriage".  The divorce petition should have been  dismissed as  not  competent  in  terms of Section  14  of  the  Hindu Marriage Act;      (c) that even on merits the divorce-decree is based  on no  evidence.  The allegations in the  divorce-petition  are wholly vague. In any case the evidence of Major Ved  Prakash being  wholly  interested  and contrary to  the  record  the courts  below  fell into grave error  in  accepting  serious allegations  against  the  appellant on  the  basis  of  his evidence;      (d) that the High Court acted illegally in substituting the  decree  of  divorce to that of a  decree  for  judicial separation.   The  High  Court  should  have  dismissed  the divorce-petition.      We may take-up the Fist Point.      The appellant filed written statement before the Family Court, Pune vehemently denying the allegations made  against her   by  the  respondent.   She  also  raised   preliminary objections  regarding  the maintainability  of  the  divorce petition.   She filed a transfer petition before this  Court which was dismissed in September,  1989.  She filed  another transfer petition which was dismissed by this Court on April 12,1990 with the following observations:-                                                        89          "It  is open to  the petitioner  to move  the  High          Court under Section 24, Code of Civil Procedure for          consideration  of  her  prayer that   the  case  be          transferred  to  another Judge.  On the  merits  of          this prayer,  we decline to make any observation.          It would appear that the case is now listed  before

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

        the  Family  Judge at Pune on 13.4.90. It  will  be          appropriate that having regard to the  apprehension          expressed  by the petitioner the Court  should  not          proceed  with  the  matter  until  her  prayer  for          transfer  is  considered  by the  High  Court.   We          accordingly  direct the Family Court, Pune to  stay          further proceeding in the case, a period of 60 days          from today to enable the petitioner to approach the          High Court."      It  is  no doubt correct that  the  appellant  did  not approach  the High Court for  the transfer of the  case  but the fact remains that she was been seriously contesting  the divorce proceedings and it would not be fair to assume  that she deliberately choose to abstain from the Family Court and was intentionally avoiding the summons.      The  Family  Court and the High Court  have  held  that after the dismissal of the transfer petition and vacation of stay  by this Court the appellant-wife should have,  on  her own,   joined  the  proceeding  before  the  Family   Court. According  to the courts below no notice for appearance  was required  to  be  sent to the parties  after  the  stay  was vacated.      It  is not necessary for us to go into the question  as to whether a fresh notice to the parties is necessary  where the  superior  Court  vacates  the  stay  order  and  as   a consequence  the  proceeding  recommence  before  the  court below.   We   are  of  the  view  that  in  the   fact   and circumstances of this case the interest of justice  required the issue of such a notice.  The admitted facts in this case are as under:-          (i)  While  dismissing the  transfer  petition  and          vacating the stay order this Court did not fix  any          date for  the appearance of the parties before  the          Family Court, Pune          (ii) The Family Court had permitted the  assistance          of a lawyer to the appellant-wife in the  following          terms:  "As  applicant is from Delhi and  it  would          cause hardship, permission is granted                                                       90          for  engaging  an Advocate for pleading   her  case          only for the purpose of presenting applications  or          serving  notices  and   noting the  orders  of  the          Court."          (iii)  The  appellant  did not engage a  lawyer  to          represent her before the Family Court, Pune.          (iv)  The  appellant-wife  was  residing  with  her          parents at Noida (Delhi).      Even  the  distance between Noida and Pune  was  a  big hassle for the appellant especially when she had no  counsel to look after the proceedings before the Family Court, Pune. We  are of the view that in the facts and  circumstances  of this  case   she was justified in her  assumption  that  the proceedings before the Family Court would  be resumed  after fresh notice to the parties.  The applicability of the Rules of natural justice depends upon the facts and  circumstances of  each  case.  We are of the view that  in the  facts  and circumstances  of  this  case  she  was  justified  in   her assumption  that  the proceedings before  the  Family  Court would  be  resumed after fresh notice to the  parties.   The applicability  of the Rules of natural justice depends  upon the  facts  and circumstances of each case.  We are  of  the view that in this case fair-play and the interest of justice required the issuance of a fresh notice to the parties after the  stay  order  was vacated by this Court.   We  do   not, therefore,  agree with the findings of the Courts  below  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

the contrary.      In  any  case-realising  the  requirements  of  natural justice-the Family Court, sent two registered notices to the appellant at her Noida address and also at the address given by  her in the proceedings before this Court. Unfortunately, both  the notices came back with the endorsements  that  the appellant could not be found on the given addresses.   There is no material on the record to reach a conclusion that  the appellant  refused  to receive the notices.  There  is  also nothing  on  the record to show as to  whether  the   postal authorities  made  any  efforts to  deliver  the  registered letters  to  any of the appellant’s relations at  the  given addresses.   The  courts  below are  wholly  unjustified  in holding  that the appellant refused to receive  the  notices and  further that the said notices could have been  received by any of her relations on the given addresses.      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.                                                      91      We   are,  therefore,  of  the  view  that  there   was sufficient cause for the non-appearance of the appellant  in the matrimonial petition before the Family Court.      The  view we have taken on the first point, it  is  not necessary  to  deal,  with the other points  raised  by  the learned counsel for the appellant.      We, therefore, 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   No.  A- 561/89.  As a consequence the judgment of the Family  Court, Pune  dated November 30, 1989 and the judgment of  the  High Court  in First Appeal No. 649/90 dated October 10/11,  1990 are also set aside.      The  appellant had asked for transfer of her case  from the Principal Judge, Family Court, Pune to some other  court and  this  Court gave liberty to the appellant to  move  the High Court for the said purpose.  We are satisfied that  the reason  given  by the appellant for such  transfer  and  the apprehensions entertained by her are wholly unjustified.  We ar,  however, of the view that the Principal  Judge,  Family Court  Pune, has taken the grievances made by the  appellant before  this  Court  rather  seriously  and  has   commented adversely about the same. With a view to do complete justice between the parties we direct that this case be  transferred from the file of Principal Judge, Family Court, Pune to  the Principal  Judge,  Family Court, Bombay.   The  parties  are directed  to  appear  before  the  Principal  Judge,  Family Court, Bombay on June 22, 1992.      Before  concluding we wish to place on record  that  we tried  to persuade the parties to live together and  in  the alternative  to  settle their dispute amicably but  with  no result.      We allow the appeal in the above terms with no order as to costs. N.V.K.                                      Appeal allowed.