Holding

The ex‑parte divorce decree was set aside because the wife had sufficient cause for non‑appearance and the service by newspaper was unjustified.

Summary

Mrs. Payal Jindal married Capt. Ashok Kumar Jindal on 24 January 1988. The husband filed a petition for divorce under Section 13 of the Hindu Marriage Act on 16 August 1988 alleging cruelty. The wife denied the allegations and sought transfer of the case from the Family Court, Pune to Delhi, obtaining a temporary stay which was later vacated. After the stay was lifted, the husband appeared before the Family Court while the wife did not; notices sent by registered post to her Noida and Delhi addresses were returned as "not found" and a newspaper notice was issued, leading to an ex‑parte decree of divorce on 30 November 1989. The wife applied to set aside the decree, claiming she never received notice; the Family Court and the High Court dismissed her application. The Supreme Court held that there was sufficient cause for her non‑appearance, that substituted service by newspaper was unjustified, and set aside the ex‑parte decree, directing transfer of the case to the Family Court, Bombay. The appeal was allowed.

Issues considered

The adequacy of notice and whether substituted service by newspaper was justified.
Whether the ex‑parte decree should be set aside on the ground of sufficient cause for non‑appearance.
Whether the divorce petition was maintainable under Section 14 of the Hindu Marriage Act (one‑year rule).
Whether the High Court could substitute a decree of divorce with a decree of judicial separation.

Legislation cited

Code of Civil Procedure, 1908s. Order 5 Rule 10, s. Order 5 Rule 9, s. Order 9 Rule 6
Constitution of Indias. Article 136, s. Article 142
Family Courts Act, 1984s. 10
Hindu Marriage Act, 1956s. 13, s. 14

Subjects

divorceex‑parte decreesubstituted servicenatural justiceFamily Courts ActHindu Marriage ActSection 14transfer of proceedingsmaintenancecruelty

Judgment

MRS. PAYAL ASH OK KUMAR JINDAL A
v.
CAPT. ASHOK KUMAR JINDAL

MAY 6, 1992

[M.H. KANIA, CJ. AND KULDIP SINGH, J.] B

Family Court's Act, 1984 : Section 10.

Hindu Marriage Act, 1956 : Section 13.

Code of Civil Procedure, 1908 Or 5. Rule 9, ·10 and Or 9 rule 6. C
Constitution of India, 1950 : Articles 136 and 142.

Divorce proceedings against wife before 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 D
Post and substituted service by Newspaper publication made for appearance
of wife-Non appearance of wife-Set a parte-Divorce decree granted to
husband-Application by wife for setting aside ex parte decree-Dis-
missed-High Court conjinning the dismissal order-Appeal by wife to
Supreme Court-Allowed-Held sufficient cause for non appearance-Ex E
parte decree set aside-Case transfe"ed to Family Court, Bombay.

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 F
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, teetotaller and faithful house·
wife.
G
During the pendency of the aforesaid divorce-proceeding before the
Family Court, Pone, 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 Septembef11, 1989 when the Transfer Petition was dismissed H
81
82 SUPREME COURT REPORTS (1992] 3 S.C.R.

A and the stay become vacated.
Thereafter~ the husband appeared before.the Family Court on Sep-
tember 15, 1989 whereas the
wife remained absent. Notices 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
B 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,
C 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 on application dated December 18, 1989 for setting
aside the ex-parte divorce-decree. She contended that she was forced to
D leave the matrimonial home at Pone 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 t9 her father informing that the
E application for maintenance could not be entertained as the husband had
already obtained a divorce decree from the Court. She further £ontended
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.

F The Family Court dismissed the application for setting aside ex-
parte divorce-decree, and the High Court upheld the reasoning and con-
clusions reached by the Family Court and dismissed the appeals filed hy
the wife.

In the appeal to this Court by the wife it was contended that: (1) The
G Family Court and the High Court grossly erred in dismissing the applica-
tion flied by tJie appellant for setting aside the ex·parte proceedings; (2)
the divorce petition should have been dlsmlHed as ,not competent In terms _ ....1..,..
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
H dlvorce•clec:ree Is based on no evidence, the allegations In the dlvorce·petl·
MRS. PAYAL JINDAL v. CAPT. JINDAL 83

tion being wholly vague, and (4) the High Court acted illegally in substitut· A
ing the decree of divorce to that of a decree for judicial separation.·

f
Allowing the Appeal, this ourt,

HELD: 1. The appellant {iled written statement before the Family
Court, Pone denying the allegat~ons made against her by the respondent. B
She also raised preliminary ·obje~tions regarding the maintainability of the
divorce petition. Though her ttansfer petitions before this Court were
dismissed in September, 1989 a'1d on April 12, 1990 and thltt she did not
approach the High Court for t~nsfer of her case, the fact remains that
she has been seriously contestin~ the divorce proceedings and it would not C
be fair to assume that she delitkrately chose to abstain from the Family
Court, and was intentionally av~iding the summons.

2. In the facts and circu~stances of this case, the appellant was
justified in her assumption that the proceedings before the Family Court
would be resumed after fresh ndtice to the parties. The applicability of the D
Rules of natural justice depen<IJ upon the facts and circumstances of each
case. Fair-play and the interest ff justice in this case requireti the issuance

~•~:·::::;:: ::::~1:~~:: ~.:~: :::::.~~:
her Noida address and also at t e address given by her in the proceedings
E

before this Court. Unfortunat ly, both the notices came back with the
endorsements that the appella~t could not be found on the given addres-
ses. On the record there is no material to reach a conclusion that the
appe!lant refused to receive the notices, or to show whether the postal F
authorities made any efforts to deliver the registered letters to any of the
appellants's relations at the gi\!en addresses. The courts below are there-
fore wholly unjustified in holdil)g that the appellant refused to receive the
notices and further that the sa•d notices could have been received by any
of her relations on the given adidresses.
G
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 apptllant 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 H
84 SUPREME COURT REPORTS [1992] 3 S.C.R.

A substitute serviCe by way of publication in the newspaper was not justified.
There was, therefore, sufficient cause for the non-appearance of the appel-
lant in the matrimonial petition before the Family Court.

S. 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
B Court, Pone to the Principal Judge, Family Court, Bombay, and the parties
are directed to appear before the Principal Judge, FamUy Court Bombay.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2446 of
1991.

C 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.
D
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
E seven months when on August 16, 1988 the husband filed a petition under
·section 13 of the Hindu Marriage Act for dissoluation of marriage on the
ground of cruetly. 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
F 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
doth es in magazines". She vehemently denied the allegations and claimed
)..__,
that 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
G 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 appeal by way of special leave is by the wife against the
H .judgments Of the courts below.
I

MRS. PAYAL JINDAL v. CAPT. JINDAL [KULDIP SINGH, J.) 85
I

During the pendency of ~he divorce-proceedings before Family A
Court, Pune, the wife filed a pet~tion, on May 1, 1989, before this Court
seeking transfer of the case frorq 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 hus-
B
band 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 notices 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 c
24. 19S9 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 D
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 E
she had gone to reside with her brother at Delhi. According to her she
applied to the Atmy 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 men-
tioned that his daughter's application for maintenance allowance could not F
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 applica- G
tion 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 H
86 SUPREME COURT REPORTS [1992] 3 S.C.R.

A 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
B 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 acorss the public
notice published in Times of India; New Delhi on 24th October
1989 as stated in the decree. The applicant submits, the ap-
c plicant had every intention to resist the marriage petitioa 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 objections including to
approach the Supreme Court of India. The intention of the
applicant was clear. The applicant submits, the applicant was
D
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. Tl;ie applicant has no
E 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,
F the applicant is unable to maintain herself,· she has no source
of income ......The applicailt 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 dispo~al of this application."

G The Family Court dismissed the application for S'etting 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
H again a notice is required to be given to the said party. I do
- MRS. PAYAL JINDAL v. CAPT. JINDAL [KULDIP SINGH, J.] 87

not think that such advice was really given to the applicant. The A
?· 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
B
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
-1_
was vacated. The order of vacating the stay was passed on 11th
September 1989 by the Hon'ble Supreme Court and the ap-
plicant knew fully well about it. The opponent who had also c
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
D
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
)-,_, envelopes postal authorities have endorsed that the present E
I

applicant was not found on these addresses. The opponent had,
therefore, made application that the applicant was avoiding to
take notice and hence 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 F
the contention of the respondent that she had no notice of the
.--1 further proceeding in marriage petition does not appear con-
vincing. As stated already in the first instance, there was no
necessity for her to wait for receipt of the notice in the cir-
cumstances of the present case. The notices sent to her were
obviously evaded, otherwise there was no reason why the ap~ G
plicant 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
H
88 SUPREME COURT REPORTS [1992) 3 S.C.R.

A 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.

B 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
c 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
D 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.
E
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

F
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 First Point.

G 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
H dismissed by this Court on April 12, 1990 with the following observations:-
MRS. PAYAL JINDAL v. CAPT. JINDAL [KULDIP SINGH, J.] 89

~ "It is open to the petitioner to move the High Court under A
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 the Family
Judge at Pune on 13.4.90. It will be appropriate that having B
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 proceedings in the case
a period of 60 days from today to enable the petitioner to C
approach the High Court."

It is not doubt correct that the appellant did not approach the High
-J_ Court for the transfer of the case but the fact remains that she has 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 D
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 E
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 proceedings recommence before the court F
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 G
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 assisLancc of a lawyer
to the appellant-wife in the following terms: "As applicant is
from Delhi and it would cause hardship, permission is granted H
90· SUPREME COURT REPORTS [1992) 3 S.C.R.

A 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.
B
(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
c 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 p:ir~ies. The applicability of the Rules of natural justice depends
upon the facts and circumstances of each case. We are of the view that in
D 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 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
E and also al 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
F 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.

G 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 lo the respondent. .She
was his wife. ft could not have been difficult for him to find out the address
where she was staying. Under the circumstances, resort to the substitute
H service hy way of publication in the newspaper was not justified.
MRS. PAYAL JINDAL v. CAPT. JINDAL [KULDIP SINGH, J.) 91

We are, therefore, of the view that there was sufficient cause for the • A
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
B
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 and First Appeal No.696/90 dated October 10/11,
1990 are also set aside. c
The appellant bad 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 reasons given by the appellant for such transfer and the
apprehensions entertained by her are wholly unjustified. We are, however, D
of the view that the Principal Judge, Family Court Pune, bas 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 E
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.
F
We allow the appeal in the above terms with no order as to costs.

N.V.K. Appeal allowed.