Smt. Sangeeta Singh vs Adarsh Kumar Singh

Shishir Kumar, J.—Heard learned Counsel for the applicant and learned Counsel for the Respondent.

This is a litigation between husband and wife. It appears that there were certain disputes between the parties, as such the husband (opposite party) filed an application u/s 13 of the Hindu Marriage Act, 1955, for granting a divorce decree. The divorce decree was granted ex parte without notice to the applicant. The applicant filed an application for recall of the ex parte order. Then, the Court fixed 16.07.2009. There was an apprehension in the mind of the wife that the husband can remarry and in that case the total proceeding will become infructuous, as such she filed a first appeal bearing No. 429 of 2009. The division bench after hearing passed an order dated 26.05.2009 preponing the date as 02.07.2009. Further, it was also provided that to avoid any future complication the status quo as on date of passing the order with regard to remarriage will be maintained. According to applicant, in spite of communication of the order of this Court of status quo, the opposite party on 28.08.2009 remarried to one Geeta Singh. Then, she filed the present application for contempt.

The notices were issued and now counter and rejoinder affidavits have already been exchanged between the parties. Now, the question for consideration before this Court is whether after the order passed by the division bench restraining the opposite party for remarriage whether after having knowledge or after communication of the order he has remarried or without any knowledge. Though, the learned Counsel for the applicant states that as registry was sent at the address of the opposite party, but an endorsement was made by the Postman that the opposite party has not been found at the address. The learned Counsel for the applicant states that this endorsement will be treated to be service upon the opposite party. He has also placed reliance upon an apex court judgment reported in M/s. Madan and Co. Vs. Wazir Jaivir Chand, Taking support of the aforesaid judgment, learned Counsel for the applicant submits that in such situation if one of the party is going out he has to inform the post office concerned.

On the other hand, Sri A.B. Sinha, learned Counsel appearing for the opposite party states that the husband was having no knowledge regarding the status quo order passed by this Court and there is nothing on record to show that any service of the order was ever made to the answering opposite party, therefore, on 28.08.2009, after expiry of the period of limitation for filing the appeal against the ex parte order in favour of the husband, he has remarried. It has further been stated by the learned Counsel for the opposite party that in case the order of this Court would have been in the knowledge of the answering opposite party, he would not have remarried.

I have considered the submissions made on behalf of the parties and perused the record. Against the ex parte order, an application to set aside the ex parte decree was filed. A date was fixed, but it appears that applicant was not satisfied, therefore, she filed an appeal before this Court and this Court has preponed the date as 02.07.2009. Further, a restrain order was passed of status quo of remarriage. From the record, it does not appear to the Court that the copy of the order passed by this Court was served upon the opposite party. The publication in the newspaper is relating to informing the date which was fixed before the family court. From the perusal of the aforesaid publication it does not appear that there is a mention in the said publication that the High Court has passed an order restraining the husband for remarriage. Further, the endorsement annexed to the contempt application does not show that the notices were ever served upon the opposite party, therefore, there cannot be any presumption, if the endorsement has been made that the addressee is not available. In case of refusal there can be a presumption under the law that after having knowledge, he has refused, but in the facts and circumstances of the present case there cannot be any presumption that opposite party was having any knowledge. As regards the judgment relied upon by the learned Counsel for the applicant that will not be applicable in the present case being the fact that that was a case under the Rent Control Act. The dispute was regarding payment of rent. The proceeding was pending being the fact that tenant was treated to be a defaulter. In such circumstances, the apex court said that in case one of the partner or the tenant is going out for a considerable period of time, he has to inform the post office concerned or to the Court that he will not be available for a particular period. But, in the present case, admittedly from the record it does not appear that after the order of this Court restraining the husband for remarriage the restrain order was ever communicated and served upon the husband (opposite party), therefore, he has remarried. It cannot be said and held that he has disobeyed the order of this Court deliberately and willfully.

In view of the aforesaid facts and circumstances, I am of the opinion that this contempt application can easily be dismissed. Therefore, the contempt application is hereby dismissed.

The notices issued to the opposite party are hereby discharged.

No order is passed as to costs.