HC: Wife refused to stay with Husband…CrPC 125 rejected

http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/7843/1/rpfc125-07-04-01-2008.pdf

HC: After getting Ex Parte Divorce if husband marries again then first wife only can claim Permanent Alimony

L.MOHAPATRA, J & C.R.DASH, J.

W.P.(C) NO.14412 OF 2008 ( Decided on 11.08.2010).

SIDDHARTH DIXIT .. Petitioner.

.Vrs.

SMT. SUJATA DIXIT Opp.Party.

CIVIL PROCEDURE CODE -1908(ACTNO. 5 OF 1908) ORDER-9 RULE-13

For Petitioner – M/s. Yeesan Mohanty, B.C.Mohanty & G.N.Dash.

For Opp.party – M/s. S.K.Padhi, M.Padhi, G.Misra, & A.Das.

M/s. G.P.Dutta, M.Dutta, A.Ghose, S.K.Mohanty

& B.K.Sahoo.

L.MOHAPATRA, J. This writ application is directed against the order dated 2.9.2008 passed by the learned Judge, Family Court, Rourkela in Misc.Case No.5 of 2008 filed under Order 9, Rule 13 of the Code of Civil Procedure( in short ‘C.P.C.’) for setting aside the ex parte decree of divorce.

2. The petitioner and the opposite party got married on 18.2.1991 as per Hindu rites and customs at Kolkata. Both of them were blessed with two children, a son namely, Siddhant in the year 1994 and a daughter namely, Shraddha in the year 1999. There were differences between both of them during this period and subsequently the relationship became such that they had to remain away from each other. The petitioner thereafter filed Civil Proceeding No.227 of 2005 in the court of the learned Judge, Family Court, Rourkela seeking for divorce. Notice was issued to the opposite party but, the same could not be served. Thereafter, steps for service of notice as provided under Order 5, Rule 20 C.P.C. were taken and in spite of paper publication, the opposite party having not appeared in the case, an ex parte

decree of divorce was passed on 9.3.2006. After waiting for the appeal period, the petitioner contracted second marriage with another woman. The opposite party coming to know about the ex parte decree, filed Misc.Case No.5 of 2008 before the learned Judge, Family Court, Rorurkela under Order 9, Rule 13 C.P.C. to set aside the ex parte decree. In the impugned order, the learned Judge, Family Court having set aside the ex parte decree, this writ application has been filed challenging the same.

3. As it appears from the discussion made by the learned Judge, Family Court in paragraphs 3, 4, 5 and 6 of the impugned order, after filing of the Civil Proceeding, notice was issued to the opposite party, who was staying at Kolkata then. Notice could not be served due to want of time and an application was filed by the petitioner for substituted service under Order 5, Rule 20 C.P.C.. The said petition having been allowed, notice was published in the ‘Times of India’. In spite of publication of notice, opposite party having not appeared, an ex parte decree was passed by the court. In the application filed under Order 9, Rule 13 C.P.C., the learned Judge, Family Court came to hold that there was no material before the court to come to a conclusion that the opposite party was avoiding service of notice on her and in absence of such a finding, the application filed by the petitioner under Order 5, Rule 20 could not have been allowed and, therefore, the substituted service made by the petitioner by way of paper publication cannot be held to be a valid service of notice and, accordingly, the ex parte decree of divorce is liable to be set aside.

4. Shri Yeesan Mohanty, learned Senior Counsel appearing for the petitioner assailed the impugned order stating that after the ex parte decree was passed, the petitioner waited for the appeal period to be over and, thereafter married for the second time. Under these circumstances, application under Order 9, Rule 13 C.P.C. could not have been allowed and the only course open to the opposite party was to pray for permanent alimony. In this connection, reliance is placed by the learned Senior Counsel on a decision of the Allahabad High Court in the case of S.P.Srivastva Vrs. Smt. Premlata Srivastava reported in A.I.R. 1980 Allahabad 336. In the said reported case, the husband filed a suit for divorce under Section 13 of the Hindu Marriage Act. The suit was decreed ex parte on 2.6.1973. The wife filed an application under Order 9, Rule 13 C.P.C. on 15.4.1976 for setting aside the ex parte decree on the allegation that she had never been served with summons on divorce petition. The husband had contracted a second marriage with another woman on 14.4.1976. The trial court having allowed the application filed by the wife under Order 9, Rule 13 C.P.C., the matter was brought before the High Court. The High Court on consideration of different orders passed by the trial court came to a finding that there were some irregularities in service of summons but that would not be a ground for setting aside the ex parte decree and allowed the revision.

5. Though the above decision is silent about the submission of Shri Y. Mohanty, learned Senior Counsel for the petitioner that the only option available to the opposite is to claim for permanent alimony, another decision of Rajasthan High Court supports such a submission. In the case of Surrender Kumar Vrs. Kiran Devi reported in AIR 1997 Rajasthan 63, it was held that after an ex parte decree of divorce is passed, if the husband has contracted a second marriage after expiry of appeal period, the petition filed under Order 9, Rule 13 C.P.C. at the instance of the wife is not maintainable and the wife can file an application under Section 25 of the Hindu Marriage Act claiming permanent alimony.

6. Shri Dutta, learned counsel appearing for the opposite party submitted that the first notice issued by the court admittedly was not served on the opposite party. The subsequent publication of notice in the ‘Times of India’ in pursuance of an order passed by the court for substituted service was on a date on which the opposite party was in China and, therefore, had no scope to know about publication of such notice. This submission of the learned counsel, Shri Dutta was seriously opposed by the learned counsel appearing for the petitioner. There is no material before us to show that on the date of publication of notice in the ‘Times of India’, opposite party was in China. This point was also never taken before the trial court and had such a point been taken, the parties would have been directed to adduce evidence in this regard. Therefore, we decline to entertain a disputed question of fact raised for the first time in this writ application.

7. So far as finding of the learned Judge, Family Court in setting aside the ex parte decree is concerned, we are of the view that such a finding is not sustainable. Admittedly, notice could not be served on the opposite party on the first occasion due to want of time. Therefore, an application was filed by the petitioner under Order 5, Rule 20 C.P.C. and permission having been granted by the court, notice was published in a widely distributed English Newspaper. The court being satisfied with regard to compliance of requirement of Order 5 Rule 20 C.P.C., had permitted the petitioner to take steps for substituted service by way of publication in a widely distributed English Newspaper. Therefore, it is not open for the trial court now to say that grant of permission to the petitioner at that stage was not justified. The ex parte order has not been set aside in any other ground by the trial court in the impugned order.

8. For the reasons stated above, we are of the view that the ground on which the trial court has set aside the ex parte decree is not sustainable and, accordingly, the impugned order is set aside. The petitioner may approach the trial court in an application under Section 25 of the Hindu Marriage Act for permanent alimony in view of the changed circumstances and in the event, such an application is filed, the trial court shall permit the parties to adduce evidence and determine the permanent alimony on the basis of such evidence.

The writ application is accordingly disposed of.

Writ petition disposed of

HC: Husband screwed in DV Act, 75000/- maintenance per month

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on : 29.04.2011

+ CS (OS) 1307/2010

EVENEET SINGH ….. Plaintiff Through : Sh. Y.P. Narula, Sr. Advocate with Ms. Shobhana

Takiar, Advocate.

Versus

PRASHANT CHAUDHRI AND ORS. ….. Defendants Through : Ms. Geeta Luthra, Sr. Advocate with Sh. Jatin Sehgal, Advocate, for Defendant No. 1.

Sh. Ankur Mahindro, Advocate, for Defendant No.2.

CORAM:

HON’BLE MR. JUSTICE S. RAVINDRA BHAT

1. Whether the Reporters of local papers YES

may be allowed to see the judgment?

2. To be referred to Reporter or not? YES

3. Whether the judgment should be YES

reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

I.A. No. 1401/2011 (Under Section 151 CPC) in CS (OS) 1307/2010

%

1. This Court had by its judgment and order dated 20.12.2010 disposed of certain applications in the two pending suits.

2. By the directions contained in that judgment, the Court had upheld the right of the plaintiff in one of the suits, (hereafter referred to as “Eveneet”) to residence in terms of Section 17 of The Protection of Women from Domestic Violence Act, 2005 (hereafter referred to as “the Domestic Violence Act”). However, the Court, on a consideration of the other materials on record formed the opinion that it would be in the best interest of the parties that Eveneet should

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 1 not continue to reside in the shared household, drawing inspiration from the judgment in Shumita Didi Sandhu v. Sanjay Singh Sandhu and Ors. FAO (OS) 341/2007 (decided on 26.10.2010), as well as Section 19(1)(f) of the Domestic Violence Act, and instead directed that she ought to be given alternative accommodation. As an interim measure, she was held entitled to ` 30,000/- per month (towards rent) over and above the monthly maintenance amount determined at ` 45,000/-.

3. The operative portion of the Court’s directions contained in paras 19 to 21 are as follows: “XXXXXX XXXXXX XXXXXX

19. In the present case, Eveneet and Prashant were living together. No doubt, the suit premises are not owned by either of them; the documents on record prima facie disclose that exclusive title and right is of Kavita, the mother-in-law. Yet, having regard to the previous discussion, Kavita is undoubtedly a “respondent” in whose household, the couple lived together. The Court here cannot be oblivious of the circumstance that Prashant moved out when the relationship became stormy; the possibility of the eviction suit having been filed as a pre-emptive move, to bring it within the Batra formulation cannot be ruled out at this stage. In the context,the Court holds that what cannot be done directly, cannot be achieved indirectly through stratagem. If the Court can look beyond the facts, and in a given case, conclude that the overall conspectus of circumstances, suggests manipulation by the husband or his relatives, to defeat a right inhering in the wife, to any order under Section 19, such “lifting of the veil” should be resorted to. Therefore, the plaintiff indeed has a right of residence under the Domestic Violence Act.

20. Now the question is what should be the order that the Court should make. As held earlier,though Eveneet has made a complaint under the Domestic Violence Act, in which orders have not been made, yet this Court also has concurrent jurisdiction under Section 26 to make appropriate orders in this regard, and mould the relief. The documentary evidence also suggests that Kavita is suffering from an acute cardiac condition; though Eveneets counsel submitted that the illness has been exaggerated, the Court cannot rule out aggravation, if the daughter-in-law continues in the premises, under a Court order, or the Court mandate. In this context, it has been observed by a division bench of this Court in Shumita Didi Sandhu v. Sanjay Singh Sandhu and Ors., (F.A.O. (OS) 341/2007, Decided On: 26.10.2010) that

“the right of residence which a wife undoubtedly has does not mean the right to reside in a particular property. It may, of course, mean the right to reside in a commensurate property.”

The above approach is consistent with the power under Section 19 (1) (f), which enables the Court to direct “the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require “. The

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 2 plaintiff is thus, entitled to residence in a property commensurate with her lifestyle and her current residence, keeping in mind Kavitas health condition.

21. The documentary evidence and pleadings suggest that Prashants monthly outgoings in respect of the New York property are US$ 4500/-, which works out to Rs.2,05,000/-. He is also paying rent to the tune of Rs.27,000/- per month. With this expenditure, the Court can safely incur that his personal expenses would not be less than about Rs. 40,000/- per month. In these circumstances, to support this kind of lifestyle, Prashants average monthly income would not be less than Rs.450,000/- to Rs. 500,000/-. On the other hand, Eveneets income is about Rs. 50,000/- per

month; Prashant alleges it to be more. Having regard to his offer to pay Rs. 20,000/- per month towards alternative accommodation, the Court is of opinion that she should be entitled to an amount of Rs. 30,000/- per month towards rent, for alternative accommodation, and an amount of Rs. 45,000/- per month maintenance. In order to facilitate and effectuate this order, the parties are directed to appear before the Court handling the complaint under the Domestic Violence Act, on 4th January, 2011, which shall oversee that Prashant complies with Section 19 (1)(f), within ten weeks from today. Till such alternative accommodation is made available, Eveneet would be entitled to continue in the suit premises, and also entitled to receive Rs. 45,000/- per month. The application for maintenance is allowed with effect from the date it was filed; arrears shall be paid within six weeks.

4. It appears that both Eveneet and her husband Prashant have carried the said matter in appeal. Eveneet contests the operative portions, contending that she has the right to reside in the shared household whereas Prashant’s grievance in respect of the order apparently is that Eveneet is not entitled to the amounts or the alternative accommodation, as directed by the Court. Learned senior counsel for the parties have also brought to the notice of this Court that by an order dated 11.02.2011, the Division Bench had left it open to Eveneet to shift into the flat leased by Prashant which was then being used by him.

5. Learned senior counsel for Eveneet contends that since the appeals are pending, it would not be appropriate for this Court to make any determination or clarification as is being sought by Prashant in this case. It is pointed-out that Eveneet’s rights having been declared in Para 19 of the judgment, and the matter has to be relegated for appropriate effectuation by the Magistrate dealing with the complaint under the Domestic Violence Act. It is also argued that even though the Division Bench by its order of 11.02.2011 gave an option to Eveneet to shift to the premises in Defence Colony, it was just that (only an option), which she was free to accept or reject.

6. Learned senior counsel for Prashant argues that this Court ought to clarify explicitly

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 3 having regard to the directions in paras 20 and 21 that once alternative accommodation is made available or offered to Eveneet and she chooses not to accept it, her right to reside in the premises would not continue. It is submitted that this follows from a fair reading of paras 20 and 21, particularly latter portion of para 21 where even the time limit of 10 weeks has been specified.

7. This Court has considered the submissions of parties. Whilst there can be no two views on the issue that the Court upheld Eveneet’s right to shared household, equally the Court had given due consideration to Kavita’s (i.e. the mother-in-law) cardiac condition, and therefore, required that Eveneet should be given alternative accommodation within the specified time. As an interregnum, the Court had mandated that she would be entitled to ` 45,000/- per month. The reference to the Court dealing with the complaint under the Domestic Violence Act was purely a facilitating mechanism. If the rights of the parties as spelt-out in the order are understood in this perspective, it is clear that Eveneet’s right to continue in the premises was for a period of 10 weeks. Prashant is no doubt under an obligation to offer alternative accommodation this process was to be monitored by the Court dealing with the complaint under the Domestic Violence Act.

8. This Court is conscious of the further events which took place by way of an order of the Division Bench dated 11.02.2011, when Eveneet was given yet another option to move into premises leased by Prashant. Apparently, that option is still open even though she has chosen not to exercise it. Having regard to the overall circumstances, the Court clarifies that the judgment and order necessarily implied that in the event of alternative accommodation being offered “made available” to Eveneet before the concerned Court, her right to continue in the premises would cease.

9. In the light of the above clarification, the parties are relegated to the concerned Magistrate Ms. Priya Mahindra, learned MM (Saket), who is dealing with the Complaint No. 98/1. The said Court shall consider the option furnished by Prashant to Eveneet in line with this Court’s order, and make suitable orders as to whether Eveneet accepts the same or not. In the event of the Court’s determination of any premises to be appropriate or suitable, Eveneet shall be given reasonable time of two weeks to shift to the same. In the event of her failing to do so, it is open to the Defendant No. 2 to take appropriate proceedings for the implementation of the order of Court. The parties are directed to be present before the concerned Magistrate on 02.05.2011.

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 4 The said officer shall endeavor to complete the proceedings within four weeks. I.A. No. 1401/2011 is disposed of in the above terms. Order Dasti.

S. RAVINDRA BHAT

(JUDGE)

APRIL 29, 2011

‘ajk’

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 5