Surya Kant, J. - (1.) This Letters Patent Appeal under Clause X of the Letters Patent is directed against the judgment, dated 23.8.2001, passed by the learned Single Judge whereby F.A.O. No.114-M of 2001 preferred by the respondent-wife against the decree of divorce by mutual consent, dated 3.5.2001, was allowed and the said decree was set aside. The order, dated 10.10.2001, dismissing the Review Application No.1196-CII of 2001 filed by the appellant against the above mentioned judgment and order, dated 23.8.2001, is also under challenge.
(2.) Brief recapitulation of the facts is as follows:- (1) The appellant (husband), who is a Captain in Merchant Navy, was married to the respondent (wife) on 9.5.1994 at Ludhiana as per Sikh religious rites and ceremonies. Out of the wedlock a female child, namely, Naseem (renamed as Nmrata) was born on 5.10.1995. Unfortunately, the appellant and the respondent could not pull on together and their marital chorus ended abruptly when a petition under section 10 of the Hindu Marriage Act, 1955 (in short 'the Act') for judicial separation, was filed by the appellant on 15.4.1998 in the court of Additional District Judge at Ambala. Subsequently, the appellant sought amendment of the said petition to convert it under section 13 of the Act for dissolution of their marriage. The amendment was allowed by the trial court, however, upon challenge by the respondent, this Court set aside the same in Civil Revision No.2775 of 2000 decided on 22.11.2000. (2) In addition to the claim for maintenance pendente-lite, it appears that the respondent also initiated criminal proceedings against the appellant and his family members for the alleged demand of dowry etc. It further appears that before the relations between them became soar, the parties were residing at Mohali in a house owned by the appellant, though according to him, immediate before he filed the petition under section 10 of the Act, they were residing in his parental house at Ambala Cantt. (3) During the pendency of petition under section 10 of the Act, the parties moved a joint application on 31.3.2001 and sought leave of the court to amend the said petition and convert it under section 13-B of the Act for the grant of decree of divorce by mutual consent. Necessary permission was granted by the learned trial court. A perusal of the record shows that the aforesaid application was moved by them along with a 'written compromise' in terms whereof the appellant agreed to pay Rs.3,000/- per month to the respondent and Rs.1500/- per month to his minor daughter as maintenance; the child was to remain in the custody of the mother with visiting rights to her father and in the event of re-marriage by the respondent and/or her going abroad in order to settle down there, the custody of the child was to be given to the father. While entertaining the afore-said joint petition, the learned trial court in its order, dated 31.3.2001, observed that it has "thoroughly questioned the parties and is of the considered opinion that the parties have voluntarily and without any pressure or coercion have decided to take divorce by mutual consent". The learned trial court also recorded their statements separately on 31.3.2001 in which both the appellant and the respondent deposed in support of their petition under section 13-B of the Act. The case was thereafter adjourned to 4.4.2001. (4) On 4.4.2001 also, statements of the appellant and the respondent were recorded in which they reiterated their decision to part ways by way of a decree of divorce by mutual consent. The case was thereafter adjourned to 3.5.2001 when both the parties appeared before the learned trial court and stated that during the intervening period they again pondered over the issue and having realized that they are unable to live like husband and wife, want dissolution of their marriage. The learned trial court, conscious of the fact that minimum waiting period of 6 months, after the date of presentation of the petition under section 13-B, was yet to expire, dispensed with the said requirement on the following premise:- "... After amendment of the original petition which has since been allowed by this court, the amendment petition would relate back to the date of filing of original petition. The court is of the considered opinion that marriage between the parties has irretrievably broken and no useful purpose will be served by keeping the petition pending for the lapse of six months from the date of institution of petition for divorce by mutual consent. In fact, the parties have already litigated for more than six months in the past and their act of showing adamancy, calls for dispensing with the condition of keeping the petition pending for six months. The said condition is accordingly dispensed with." (5) The ordeal, however, did not come to an end for either of the parties. Alleging that her 'consent' for divorce was obtained in invitum and through fraudulent means, the respondent filed an appeal in which, while issuing notice to the appellant herein, a Division Bench of this Court vide order, dated 29.5.2001, restrained him from re-marrying till further orders and also stayed operation of the judgment and decree, dated 3.5.2001, passed by the learned Additional District Judge. (6) The record suggests that notices were issued to the appellanthusband (respondent in the aforesaid appeal) on two addresses, namely, (i) his permanent address at Ambala Cantt., and (ii) at House No.2404, Phase XI, Mohali. The notice dated 30.5.2001 sent at the appellant's permanent address of Ambala Cantt was received by his father Gurbachan Singh Mann, who endorsed the receipt thereof with the remarks that the appellant's whereabouts were not known to him as he had gone abroad after getting remarried and that as soon as he receives any communication from his son, he (the father) will inform him (the son). The process server's remarks indicate that the appellant's father received the summons and noted the date as well as the interim order passed by this Court. On the second set of summons which was sent at the Mohali address of the appellant, the process server remarked on 9.6.2001 that "Charanjit Singh Mann has gone to Ambala for some Bhog ceremony". His another attempt to serve the appellant on 12.6.2001 also failed. However, finally he sent a report on 16.6.2001 stating that a copy of the summons along with the copy of the appeal was handed over to Charanjit Singh Mann who after reading the same, refused to accept the same and a copy of the summons was affixed at the house. (7) The appeal was thereafter taken up for final hearing on 23.8.2001 by the learned Single Judge and no one appeared initially on behalf of the appellant. The learned Single Judge, in view of the report of service on the second set of summons, referred to above, took the view that the appellant was deemed to have been served. Relying upon the judgment of the Supreme Court in the case of Smt. Sureshta Devi v. Om Parkash , AIR 1992 SC 1904 as well as an order, dated 20.8.2001, passed by this Court in FAO No.39-M of 1998 (Raj Rani v. Des Raj Kalra), the learned Single Judge held that no decree for divorce by mutual consent could have been passed by the trial court until the expiry of mandatory waiting period of 6 months as prescribed under section 13-B(2) of the Act and accordingly, set aside the impugned decree of divorce on this score alone. (8) It appears that when the learned Single Judge was about to conclude the judgment in favour of the wife, a learned counsel intervened on behalf of the appellant and submitted that:- (i) instead of setting aside the divorce decree the case may be remanded to the trial court; (ii) the appellant had gone out of India and this fact may be taken notice in the order; (iii) he had been instructed to inform the court that the appellant had re- married. The learned Single Judge, however, repelled these contentions and observed that:- "Learned counsel, Shri Vinod Bhardwaj has made submission, on instructions which clearly shows that the respondent has received notice but is deliberately avoiding service. Counsel has not filed appearance formally nor is he willing to file his appearance. This shows that the respondent is simply attempting to delay the matter." (9) On 14.9.2001, the appellant moved an application under Order 47 Rule 1 read with Sections 114 and 151 CPC for the review of the judgment and order, dated 23.8.2001. After giving a brief summary of the long drawn fight between the parties at different platforms, it was averred by him that the respondent had consented for divorce without any fraud or coercion; the decree of divorce for mutual consent was in terms of written compromise Ex.C1; it was after expiry of 30 days that he re-married "in the first week of June 2001"; he left Ambala Cantt. On 8.6.2001 for Delhi for his onward journey to Mumbai to sort out his programme to visit Singapore and to sign a contract with the employer at Mumbai and he left India by Air India flight No.SO407 on 13.6.2001; he was not present at both the addresses i.e. Ambala Cantt. and Mohali when the notices in the First Appeal were sought to be served; that a false report in connivance with the process serving agency was procured by the respondent's father, who is an Advocate and also witnessed the report of the process server on the second set of summons sent at Mohali address; that no proper service was effected upon him, therefore, the exparte judgment and order, dated 23.8.2001, deserved to be recalled. (10) The learned Single Judge, after taking notice of the fact that the review application was filed through one of the counsel who had actually appeared and made submissions on behalf of the appellant at the time of hearing of the main appeal and, thus, the appellant had knowledge of pendency of the appeal, did not find any substance in the review application and dismissed the same with costs.
(3.) Aggrieved, the appellant has preferred this appeal.;