9911796707
TMI Blog1992 (5) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... rian, 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 for setting aside the exparte decree was dismissed by the Family Court on June 24, 1990. The High Court by its judgment dated October 10/11, 1990 upheld 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 judgments of the courts below. 2. During the pendency of the divorce proceedings before Family Court, Pune, 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 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 husband 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and in any event, the applicant also did not come across the public notice published in Times of India, New Delhi on 24th October, 1989 as stated in the decree. The applicant submits, the applicant had every intention to resist the marriage petition 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 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. The applicant has no 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, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e further proceeding in marriage petition does not appear convincing. As stated already in the first instance, there was no necessity for her to wait for receipt of the notice in the circumstances of the present case. The notices sent to her were obviously evaded, otherwise there was no reason why the applicant was [not] 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 in one of the most widely circulated newspaper at Delhi was sufficient notice to the applicant." 5. The High Court upheld the reasoning and the conclusions reached by the Family Court and dismissed the appeals filed by the wife. 6. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was intentionally avoiding the summons. 10. 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 Family Court. According to the courts below no notice for appearance was required to be sent to the parties after the stay was vacated. 11. 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 below. We are of the view that in the facts 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 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 assistance of a lawyer to the appellant- wife in the following terms: "As applicant is from Delhi and it would cause hardship, per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stified. 15. We are, therefore, of the view that there was sufficient cause for the non-appearance of the appellant in the matrimonial petition before the Family Court. 16. 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. 17. We, therefore, set aside the order of the Family Court dated June 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. 18. The appellant had 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, of the view that the Principal Judge, Family Court, Pune, has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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