Gurdeep Sachdeva vs Tripta Kaur

Alok Singh, J.—Husband/Petitioner has invoked supervisory jurisdiction of this Court assailing the judgment dated 31.8.2009 passed by learned Addl. District Judge, Karnal, whereby application moved by wife-Respondent under Order 9 Rule 13 CPC to set aside ex-parte judgment and decree dated 6.1.2007 was allowed.

Brief facts of the present case are that Petitioner/husband filed a petition for divorce u/s 13 of the Hindu Marriage Act on 30.8.2006. No personal service of summon was ever effected on the wife-Respondent. A registered envelope was shown to be refused on 14.9.2006 by the wife and case was directed to be proceeded ex-parte and ultimately decreed ex-parte. Learned trial Court has observed that no personal service was effected on the wife and service was shown by the refusal and munadi. Learned trial Court has further observed that it could not be proved on record that wife came to know about the pendency of the divorce petition through the anticipatory bail application moved by the husband. Learned trial Court has further observed that husband himself made an application before the Women Cell, Delhi Police to reconcile with the wife without disclosing therein that he has already filed divorce petition against his wife.

Learned Counsel for the Petitioner vehemently argues that wife has acquired knowledge about the filing of the divorce petition when husband has moved anticipatory bail application before the Rohini (Delhi) Court. He further states that postman was examined who has proved the endorsement of refusal of the registered envelope. Learned Counsel for the Petitioner further argues that after the ex-parte decree of divorce husband has re-married and has one baby girl from the second wife.

In the opinion of this Court, if there is no personal service then it would not be safe to hold that Defendant was duly served. Since copy of anticipatory bail application is not required to be served on the complainant-wife, hence, it would be highly improbable to say that wife has come to know about the divorce petition through anticipatory bail application moved by the husband. Supervisory jurisdiction of this Court under Article 227 of the Constitution of India should ordinary be not invoked when discretion was duly exercised by the learned trial Court giving opportunity to the Defendant to contest the case on merit. I am not inclined to invoke jurisdiction under Article 227 of the Constitution of India to disturb the discretion exercised by the learned trial Court.

Hence, the petition is dismissed.