Balwinder vs Kuldeep Kaur

Vijender Singh Malik, J.—By filing a petition u/s 12(i)(c) of the Hindu Marriage Act, 1955 (for short ''the Act''), Balwinder, petitioner, the husband has obtained a decree of annulment of his marriage with Kuldeep Kaur, respondent. The said decree is passed ex-parte against the respondent on 05.09.2008. . The wife filed an application under Order 9 Rule 13 CPC for setting aside the said decree and vide order dated 21.10.2011, learned Additional District Judge, Chandigarh has accepted the said application and has set aside the ex-parte judgment and decree dated 05.09.2008. It is this order, which is challenged by the petitioner by way of this revision petition brought under the provisions of Articles 226/227 of the Constitution of India.

The marriage between the parties was solemnized on 10.12.2006. Claiming that the girl shown to him before the marriage was different from the girl with whom his marriage was solemnized, Balwinder has sought a decree of annulment of marriage.

In her application for setting aside the ex-parte judgment and decree dated 05.09.2008, the respondent had claimed that Balwinder had played with the process of the court and had succeeded in obtaining the ex-parte decree on 05.09.2008. According to her, the petition was filed on 02.05.2007 and the case was taken up on 27.10.2007. It was found from the report of the process server made on the notice issued to the respondent that she was not residing at the given address. Fresh correct address of the respondent alongwith registered covers were sought to be filed by the petitioner and thereafter notice was ordered to be issued to the respondent for 13.12.2007. Neither the correct address nor the registered covers were filed. Again correct address and registered covers were sought from him for 13.02.2008. On 13.02.2008, the court came to the conclusion that the respondent was avoiding service of summons and she was ordered to be served by way of substituted service in ''Desh Sewak'' a newspaper for 09.05.2008. After the said publication, the case was ordered to proceed ex-parte against the respondent and those proceedings ended in the ex-parte judgment and decree.

The wife has claimed that she was shown to be a resident of H. No. 2950-51 Dadu Majra Colony, Sector 38, Chandigarh. This is the address of the petitioner as per the memorandum of parties. According to her, on three dates, the process server made report that the said premises was found lying locked. Nothing was there to prove that the respondent was avoiding the services of summons. Summons were never tendered for her service. She has claimed that she was not subscribing to the newspaper ''Desh Sewak'' and that she never came to know about such newspaper. The said newspaper is said to have no circulation at Pehowa where she has been residing.

The petitioner opposed the application claiming that the correct address of Kuldeep Kaur was given and that she had been avoiding service, on account of which, notice was ordered to be served upon her by way of publication in newspaper ''Desh Sewak''. According to him, a copy of voter list issued by Election Office for the year 2009 as well as copy of ration card show the respondent Kuldeep Kaur to be a resident of village Jabbo Majra, Tehsil Rajpura , District Patiala and the court has rightly proceeded ex-parte against her. He has also averred that the judgment and decree dated 05.09.2008 is not liable to be set aside for any reason.

On the pleading of the parties, the following issues were framed:-

1- Whether there are sufficient grounds to set aside the ex-parte judgment and decree dated 05.09.2008 ?OPA

2- Relief.

The parties led their respective evidence and hearing learned counsel for the parties, learned Additional District Judge, Chandigarh came to the conclusion under issue No. 1 that the respondent is not proved to be residing at the addresses given for her in the petition. He has also come to the conclusion that the respondent was not duly served. Consequently, the application was allowed and the ex-parte judgment and decree dated 05.09.2008 were set aside.

Aggrieved by the aforesaid order, the husband has preferred this revision petition.

I have heard Shri Gourave Bhayyia Gilhotra, learned counsel for the petitioner and have gone through the record.

Learned counsel for the petitioner has submitted that the address of respondent of village Jabbo Majra has been her correct address where summons were tendered to her for service and she refused to accept the same. According to him, the statement of Bali Kumar, Process Server examined as PW-3 is sufficient to prove that she avoided acceptance of notice of the petition and, therefore, the order of substituting the service by way of publication is justified and since the respondent was served by way of publication in the newspaper, and she did not appear in the court despite that, she was rightly proceeded ex-parte.

Learned counsel for the petitioner has further submitted that learned Additional District Judge, Chandigarh has heavily relied upon the circumstance of non-examination of Ajit Singh, Ex-sarpanch, who was shown to have attested the report of the process server. According to him, the petitioner had examined the Block Development Officer-cum-Panchayat Secretary of village Jabbo Majra and Inspector from the department of Food and Supplies to prove that the respondent had been residing at the Jabbo Majra address given in the petition and that she had been duly served in the same. He has submitted that the respondent was, thus, proved to be duly served by way of summons as well as publication in the petition and there was no sufficient ground for setting aside the ex-parte judgment and decree in question.

The evidence of Block Development Officer-cum-Panchayat Secretary and Inspector of Food & Supplies Department, cannot be relied upon to hold that the respondent had been residing at the Jabbo Majra address when notice of the petition is alleged to have been tendered to her. The documents such as voter list or ration card cannot be relied upon to come to the conclusion that at the time she was sought to be served by the process server, she was residing at the Jabbo Majra address. The documents in question are sometimes repeated from the previous entries and they cannot be relied upon in this regard.

When Bali Kumar, Process Server went to serve the respondent and she avoided taking the summons, the report was attested by Ajit Singh, Ex-sarpanch of the village. This Ajit Singh was the only person, who could prove that the summons were tendered to Smt. Kuldeep Kaur and that she avoided receiving the same. Process server was not knowing the woman to whom the summons were tendered. A person like the petitioner, who could give his own address as the first address of the respondent for her service cannot be believed to have not produced another woman before the process server in the name of Kuldeep Kaur at the Jabbo Majra address. It is when the house of the first address of Smt. Kuldeep Kaur was reported to have been found locked on three consecutive occasions that the notice was sent to Jabbo Majra address wherefrom the report of avoiding the service was received. There was no reason for the petitioner to have not examined Ajit Singh, Ex-sarpanch. He was the most material witness to prove the tendering of summons to Smt. Kuldeep Kaur. His non-examination, therefore, shows that he has been deliberately withheld from the court and it is sufficient to raise inference that he would not have supported the case of the petitioner.

The respondent has already filed an application u/s 125 of the Code of Criminal Procedure in the court at Pehowa, in which she gave her address of Pehowa. The registered covers sent for service of respondent at Jabbo Majra address had not been received back served or otherwise. So the court could not take any assistance from that circumstance also. In these circumstances, there were no grounds for ordering service to be effected upon the respondent by way of publication. Once it is proved that the order of effecting substituted service was not supported by valid reasons, the service by publication cannot be taken as due service.

Therefore, the evidence on record is clear enough to show that the petitioner has failed to prove that the respondent was duly served by a notice of the petition. She was, therefore, not legally proceeded against ex-parte and she had sufficient grounds for not appearing in the court on the date fixed when she was proceeded against ex-parte.

Consequently, the finding of learned Additional District Judge, Chandigarh on issue No. 1 is un-exceptional. Upholding the same, I find no merit in the revision petition and dismiss the same.