Daily Archives: August 9, 2013

Looking for case law on bail? divorce? quash? writs? start here … approx 130 cases … with interesting views ..and a lot of juice !!!!!

Dear Readers

As you know these blogs have been a repository of a large number of court cases and interesting articles

I have made a very brief compilation of 125 cases posted the last few weeks / months !!

I plan to make more such compilations in the near future

Probably some one would be kind enough to send their cases to me so that I can blog and add them to this list ??

Since the formatting was becoming an issue , the same is uploaded to Gdocs.

the link is here : https://docs.google.com/file/d/0B-JZGIVy-RW5UE85RFJjM2stekE/edit?usp=sharing

short link : http://bit.ly/1cRrVZx

I’d be delighted to have your feedback and suggestions (as comments) to this blog

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FOR 100s of high court and supreme court cases

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

NO travel! NRI can convert contested divorce to mutual consent thru power of attorney!! super judgement for NRI husbands, even where video conference is NOT available in your city / town !! read here for complete details …

NO travel!! NRI can convert 13(1) divorce to mutual consent thru power of attorney!! super judgement for NRI husbands!!

Learning / notes
****************************
* Husband wife file contested divorce
* wife completely absent for counselling
* wife , the ablaa naari, has also left for USA and so is obviously NOT ready to come to India and continue the case
* now ,,,, meaning after filing the case, husband and wife have settled / compromised the matter and wish to go for mutual consent divorce
* family court refuses to convert petition as the wife was NOT present during counselling NOR present during filing of 13(B) mutual consent petition !!
* there is NO video conferencing facility in family court
* but HC even overrides even that and says "……..Thus, there is no legal hurdle into conversion of the Petition into a Petition for mutual consent. The physical presence of both the parties is generally asked and necessary to verify the authenticity of the identity of the parties and consent of the parties. However, there are peculiar circumstances like the case in hand where either of the parties cannot remain present before the Court due to certain practical difficulties i.e. Job, leave, visa etc. due to globalisation noticeable educated young persons are crossing the borders of India and they are taking up jobs outside the country. So some of them can not remain present before the Family Court to give consent in matrimonial matters. There is no illegality to solve such difficulty by adopting novel and available ways. This hurdle can be crossed with the help of advanced technology of communication and new scientific methods. Though the physical presence is not possible, the Court can accept and rely on the virtual presence of the parties for verification and confirmation of the mutual consent. Even though, the counselling with the Marriage Counsellor can be facilitated by virtual presence. ..
7. Thus, the learned Judge of the Family Court is directed to arrange a video conference of the Marriage Consellor with the Respondent­wife in the Court with the help of Computer/ Lab top or by using of webcam…….."

******************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS DOT NIC DOT IN SITE
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.2521 OF 2012

Mr. Mukesh Narayan Shinde …Petitioner

Vs.

Mrs. Palak Mukesh Shinde nee Palak D. Patel …Respondent ­­ Mr. P.G. Lad for the Petitioner

Mr. R.P. Desai for Respondent ­­ CORAM : MRS. MRIDULA BHATKAR, J. DATE : 28th March, 2012. Judgment :­

. Rule. Rule made returnable forthwith. Learned Counsel for the Respondent waives service. By consent, heard finally at the stage of admission.

2. The Petitioner­husband has filed a Petition for challenging the order dated 7th February, 2012 passed by the learned I/c Principal Judge of the Family Court, Mumbai.

3. Learned Counsel for the Petitioner and the Respondent are present. Both the Counsel submit that the Petitioner­husband filed a Petition forppn 2 wp-2521.12 divorce on the ground of cruelty which is numbered as A­2687 of 2010. During the pendency of Petition, the parties have decided to solve their matrimonial dispute amicably. Therefore, they took a decision to convert a Petition filed under Section 13(1)(ia) to a Petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955.

4. The Petitioner­husband is residing in Mumbai. The Petitioner and the Respondent resided last in Mumbai. Therefore, the Petition filed is within jurisdiction of the Family Court, Mumbai. The Petitioner­husband continued to stay in Mumbai, however, the Respondent­wife left Mumbai and at present she is residing at New Jersey, U.S.A. Mr. Dineshbhai Patel­father of the Respondent­wife is a power of attorney holder for the Respondent­wife. Parties through their Counsel and through the Power of attorney holder filed consent terms and requested the Court to convert the Petition under Section 13B of the Hindu Marriage Act. However, the request was rejected by the Court holding that the Respondent was absent throughout and counselling was not taken place in that matter. Therefore, the Court felt it not safe to accept the consent terms and did not allow the conversion for want of verifying the actual position.

5. Learned Counsel for both sides submit that they requested the Court to verify the consent of the Respondent­wife by video conferencing.ppn 3 wp-2521.12 As infrastructures are not available, the said request was turned down. The parties approached this Court for relief.

6. Conversion of Petition filed under section 13(1)(ia) into a Petition under Section 13B for mutual consent is legally permissible. Thus, there is no legal hurdle into conversion of the Petition into a Petition for mutual consent. The physical presence of both the parties is generally asked and necessary to verify the authenticity of the identity of the parties and consent of the parties. However, there are peculiar circumstances like the case in hand where either of the parties cannot remain present before the Court due to certain practical difficulties i.e. Job, leave, visa etc. due to globalisation noticeable educated young persons are crossing the borders of India and they are taking up jobs outside the country. So some of them can not remain present before the Family Court to give consent in matrimonial matters. There is no illegality to solve such difficulty by adopting novel and available ways. This hurdle can be crossed with the help of advanced technology of communication and new scientific methods. Though the physical presence is not possible, the Court can accept and rely on the virtual presence of the parties for verification and confirmation of the mutual consent. Even though, the counselling with the Marriage Counsellor can be facilitated by virtual presence. ppn 4 wp-2521.12

7. Thus, the learned Judge of the Family Court is directed to arrange a video conference of the Marriage Consellor with the Respondent­wife in the Court with the help of Computer/ Lab top or by using of webcam. The father of the Respondent­wife shall identify the Respondent­wife. The on­ line counselling can be done with the help of webcam. Thereafter, the learned Judge of the Family Court shall verify and record on­line consent with the help of webcam and laptop/computer. Parties to appear before the Family Court on 31st March, 2012 at 11 O’ clock to enable the Judge of the Family Court to give direction to make necessary arrangements for E­counselling and E­verification by video conference.

8. The matter is already fixed on 9th April, 2012 in the Family Court. The parties are directed to provide a laptop / web cam and other logistics required for this video conference of their own costs.

9. Writ Petition is allowed. Rule made absolute, accordingly. No order as to costs.

10. The parties to act on an authenticated copy of this order.

(Judge)

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Truth about India’s Gender Ratio

world male:female ratio 1.06:1. So 940 females:1000 males. Indian National Ratio 943 Females: 1000 males, So Where is the female foeticide?

Stand up for a Cause ...

Birth order can affect human psychology, thoug...

We have heard a lot of discussions in the media about the skewed gender / sex ratio of India. Certain media reports and renowned economists have treated this as an elaborate scheme of female foeticide. Today let’s delve deeper into the gender statistics of India.

It is stated that many girls are aborted in the womb due to which our sex ratio is low and not equal to 1. On the face of it their reasoning seems to have some weight ‘BUT’ there is no research or report to show that the human sex ratio is equal to 1. In fact the natural human sex ratio is 1.06 males per female[i]. Converting it to a number which we all know is 940 females per 1000 males. So the natural sex ratio is not 1000 females per 1000 males but hovers around 940 females per 1000 males.

Many factors…

View original post 148 more words

wife NOT giving her salary NO ground for divorce. GO GO earn yourself, lousy MAN. IF wife asks,..cough..cough.pay her well ….. The one thing I can’t understand is how this MAN went on appeal to the Honouorable Hiigh court, not even knowing this basic fact that men are supposed to earn and provide everything when women NEED NOT give one penny to the household …. I’m really surprised at the stupidity of this husband … I’m … I’mmm…saddened

wife NOT giving her salary NO ground for divorce. GO GO earn yourself, lousy MAN. IF wife asks,..cough..cough.pay her well ….. The one thing I can’t understand is how this MAN went on appeal to the Honouorable Hiigh court, not even knowing this basic fact that men are supposed to earn and provide everything when women NEED NOT give one penny to the household …. I’m really surprised at the stupidity of this husband … I’m … I’mmm…saddened

Learning
*********************
* wife earning well and maintainng her own bank account
* stupid male / also called husband , when sufffering from financial difficulties asks wife for money
* the poor wife, ablaa naari, refuses
* the stipid male …ok..husband does NOT know that the wife NEED not give him her salary
* husband has other claims etc and looses the case in the family court
* as if loosing the case at the family court is NOT good enough, he goes on to loose the case at the High court

* I can ONLY say , the MEN in this country NEED an adult literacy program

Quoting the honourable HC “….It is required to be noted that simply because wife is earning and did not part with her salary in favour of the husband, can never be treated as a ground for cruelty on the part of the wife to the husband. It is very distressing that on such a trifle ground, the appellant has deserted her wife and is not keeping her with him, though there is a child out of the said wedlock. It has come in the evidence that immediately after the delivery of the child, the appellant demanded money from the wife and as discussed above, when the wife was feeding the child, he was demanding money from her and infact, on the subsequent days, he was demanding money from her.  If any cruelty is to be attributed, in our view, it can be attributed to the appellant ­husband and not to the wife……”

 

******************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS DOT NIT DOT IN SITE
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.151 OF 2011
WITH
CIVIL APPLICATION NO.317 OF 2011
IN
FAMILY COURT APPEAL NO.151 OF 2011

Mr.Umesh Manohar Waidande,

Age 37 years, Occu – Unemployed,
R/at Sankalp Nagar C/A/203, Near Kalwa
Swimming Pool, Kalwa, Thane – 400 605. …..Appellant

versus

Mrs.Trupti Umesh Waidande,
Age 27 years, Occu – Service,
R/at C/o Mr.Shrirang Waghmare,
6A/104, Mangaldeep Society,
Manisha Nagar, Kalwa, Thane – 400 605. ….. Respondent

Mr.P.P.Kulkarni, for the appellant.

Mr.G.N.Salunke with Mr.S,.G.Swami, for the respondent.

CORAM: P.B.MAJMUDAR &

ANOOP V. MOHTA, JJ.

DATE: 10TH APRIL, 2012

ORAL JUDGMENT ( PER P.B.MAJMUDAR, J. ) :­

1. By way of this appeal, the appellant, who is husband of the respondent­wife, has challenged the judgment and order of the Family Court, by which the Family Court, Thane, dismissed the petition filed by the appellant­husband being Marriage Petition No.209 of 2006. The appellant­husband filed the aforesaid Marriage Petition for getting decreessp 2 FCA 151 of 2011 for divorce on the ground of cruelty and desertion. It is the case of the appellant that his wife used to quarrel with him frequently in the presence of other family members and she was not parting with the salary which she is earning out of the employment, as he was having financial difficulties. The aforesaid behaviour of the wife i.e. insulting the husband and not parting salary in his favour, is treated to be a ground for cruelty, for which a Marriage Petition was filed. The other ground for divorce which was pressed into service was the ground of desertion.

2. The learned Judge of the Family Court after considering the evidence on record, came to the conclusion that there is absolutely no justification in dissolving the marriage. The Family Court negatived both the points regarding cruelty as well as desertion and dismissed the Marriage Petition filed by the appellant­husband. The respondent­wife has filed a counter claim regarding the restitution of conjugal rights. The said counter claim was allowed and decreed in favour of the respondent­ wife and the Family Court directed the appellant to join the respondent and render conjugal rights to her and also directed to pay maintenance @ Rs.5,000/­ p.m., for the minor son till he resumes cohabitation.

3. The marriage between the appellant and respondent took place in the year 2001 and out of the said weklock, there is also a minor son who is 9 years of age. In so far as the ground about cruelty is concerned, it is required to be noted that except stating in the evidence that the respondent­wife used to insult the husband, he has not given any cogent particulars about the nature of cruelty. In para No.4 of the affidavit in lieu of examination­in­chief, the appellant­husband has stated that at the time of marriage, it was decided between both the parties that marriage expenses will be shared equally. He further stated that the sister of the respondent­wife is having quarrelsome nature and she does not respect elders.

5. In para No.5, the appellant has deposed that the respondent is a women of independent and selfish nature and was doing the things which she like and decide. She used to take guidance of her mother who is residing nereby. He has further stated that prior to the marriage, the respondent told her that she would share her salary with him, but after the marriage, she did not share her salary with him. In para No.6 of the affidavit, the appellant has averred that the respondent used to pick up quarrels petty reasons and used to abuse him in filthy language and she used to insult him in presence of relatives. In the evidence, the husband has also stated that on all matters, she used to consult with her mother. He stated that since last three years she is residing with her parents and deprived him of his matrimonial rights.

6. In the cross­examination, he has admitted the fact that the dispute between him and respondent­wife arose on the issue of money 10­ 12 after her delivery. He admitted that the demand of money was made by him on two occasions during the delivery of the respondent. The respondent was having bank account in her single name and there was no joint account. He further admitted that when for the first time after her delivery, I demanded money from her, the respondent told him that she will discuss this issue on the next day as she is feeding the child and accordingly, again on the next day, he went to her parents house for discussing the money issue. The respondent expressed her inability to pay the money to the appellant.

7. The learned Judge of the Family Court has considered the evidence in proper perspective and found that the appellant has failed to make out any case about the cruelty. As a matter of fact, the respondent in her evidence stated that so far as ground of desertion is concerned, she has filed a counter claim regarding restitution of conjugal rights. In her evidence, she has stated that the appellant is not her back to the matrimonial house as he did not want to cohabit with her. Considering the evidence on record, the Family Court allowed the counter claim regarding restitution of conjugal rights.

8. We have gone through the judgment and order of the Family Court and have gone through the oral evidence which is madessp available with the appeal proceedings. It is required to be noted that simply because wife is earning and did not part with her salary in favour of the husband, can never be treated as a ground for cruelty on the part of the wife to the husband. It is very distressing that on such a trifle ground, the appellant has deserted her wife and is not keeping her with him, though there is a child out of the said wedlock. It has come in the evidence that immediately after the delivery of the child, the appellant demanded money from the wife and as discussed above, when the wife was feeding the child, he was demanding money from her and infact, on the subsequent days, he was demanding money from her. If any cruelty is to be attributed, in our view, it can be attributed to the appellant­husband and not to the wife. In the evidence, the appellant has not given any particulars about the insulting behaviour of the wife, except stating that she used to insult in presence of her relatives. After the marriage, the wife is not executing slavery bond that she will not speak anything. The wife is entitled to have a voice in the family and she is expected to have her voice by expressing her views. On absolutely flimsy grounds as stated above, the appellant has tried to get marriage dissolved by getting decree for divorce when out of the said wedlock, there is a child who is minor. In our view, the Family Court rightly dismissed the marriage petition, as on such a flimsy and trifle ground, the solemnized marriage should not be allowed to be dissolved by such act of the appellant­husband. The real sufferer is the child and the respondent wife is also subjected to suffering as the appellant is not permitting her to come back to the matrimonial home. The Family Court therefore, rightly allowed the counter claim filed by the respondent wife, allowing the restitution of conjugal rights.

9. Learned counsel for the respondent submits that the appellant is now residing in Norway and is earning 37000 Norway currency. In spite of the said fact, he is not looking after his wife and child. It will be open to the respondent wife to try to get the social security number of the appellant­husband, on the basis of which she can point out to the Indian High Commission as well as the Norway Government that the appellant­husband is not maintaining the child and wife, as it is informed to the Court that he is not sending any amount of maintenance. On the basis of social security number, the concerned Indian High Commission at Norway can very well find out the name of the employer of the said appellant, which name can be given to the respondent wife and on the basis of which, the respondent­wife can take out appropriate proceedings against the appellant and can send a copy of this order to the concerned employer, so that the employer can deduct the amount of maintenance and send the same to the wife in India at her address, as it is a matter of child protection and the amount in question is required to be spend for the protection of child. The respondent­wife is free to take out such proceedings in accordance with law and as deemed fit.

10. In view of what has been stated above, we do not find any substance in the above Family Court Appeal, which is accordingly dismissed with no order as to costs.

11. In view of the dismissal of the Family Court Appeal No.151 of 2011, the Civil Application No.317 of 2011 does not survive and the same is accordingly dismissed.

( ANOOP V. MOHTA, J. ) ( P.B.MAJMUDAR, J. )

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Set aside divorce AFTER 5 years & 144 days as notice UNSERVED on wife!!. Husband’s getting exparte divorce beware …beware !!! In this case husband has remarried, still ex parte divorce set aside !!

Set aside divorce in favour of wife and AGAINST husband AFTER 5 years & 144 days of original decree, as notice was returned UNSERVED on wife!!. All parties getting exparte divorce beware …beware !!! In this case husband has remarried, still ex parte divorce set aside !!

learning
*******************************
* husband gets an exparte divorce
* notice served on wife is returned stating ‘unserved’
* bailee says that he went to the woman’s house, woman refused to take the notice, bailee wanted to stick the notice on the door, woman did NOT allow the same, so he returned stating “..unserved..”
* wife says it is a total fraud on her
* says she was completely un aware of the divorce
* she says the husband took an insurance policy 6 months after divorce and had placed wife as beneficiary
* other allegations follow
* she seeks set aside of ex parte divorce 5 tears and 144 days AFTER decree !!!
* finally HC gives a dose to Family court NOT ordering summons further, accepting “unserved” etc
* HC condones delay of 5 years and 144 days
* Husband has re married in the meanwhile …. but still HC condones delay
* overall the husband’s case comes out as a weak case and NOT STRONGLY countering wife’s arguments
* it is NOT clear IF husband had a weak lawyer or had a weak case itself !!

******************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS DOT NIC DOT IN SITE
******************************************************************

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

IN FAMILY COURT APPEAL (STAMP) NO.7883 OF 2012

Mrs. Regi Suresh Nair …. Appellant

vs

Shri Suresh Putharakkal Nair …. Respondent

Mr. A.S. Khandeparkar i/by Mrs. Shilpa Joshi for the Appellant.

Mr. H. K. Menghani for the respondent.

CORAM: P. B. MAJMUDAR &
ANOOP V. MOHTA, JJ.

DATE : April 20, 2012

ORAL JUDGMENT (Per P. B. Majmudar,J.):

Rule. By consent the Application is taken up for hearing today.

2 This is an Application filed by the Appellant/wife for condoning the delay of about 5 years, 144 days in filing the Appeal which is against the decree of divorce granted by the trial Court. The Respondent herein has filed a marriage Petition being Petition No.A­ 1406 of 2005 for dissolving the marriage on the ground of cruelty and alternatively on the ground of judicial separation. The Family Court by its order dated 11 July 2006 passed an exparte decree by dissolving the marriage on the ground that though served the original Respondent/wife has not appeared in the proceedings. The trial Court accordingly allowed the application of the original Respondent/husband on 11 July 2006. It is the aforesaid order which is challenged in this Appeal. Since there is an inordinate delay for more than 5 years, this Civil Application is filed for condonation of delay.

3 Mr. Khandeparkar, the learned counsel appearing for the applicant/wife vehemently argued that this is a case in which the Respondent/husband surreptitiously and by committing fraud proceeded with the Family Court application against the wife though the Court summons was never served on the applicant/wife. It is the say of the applicant that the Respondent/husband has played smart and wanted to deceive the wife as according to him, even though the divorce was granted by the trial Court on 11 July 2006, the Respondent/husband never informed about the same and continued to reside as husband and wife all through out keeping the lady in dark. It is submitted by him that subsequently, in order to take away the house wherein the Appellant used to reside with the Respondent/husband, he took out the proceedings for obtaining possession in the Civil Court. At the time when she received the summons regarding the aforesaid matter, she realised that the Respondent wants to take away the possession of the house where she is residing along with him and in fact she came to know for the first time that there is decree for divorce passed by the trial Court. Having realised the said aspect, she filed an application for setting aside exparte decree in which the trial Court condoned the delay. However, the trial Court rejected the application for setting aside the decree on the ground that wife has not made any allegation against the bailiff regarding the service of notice and, therefore, the Family Court did not accept the application for setting aside the exparte decree. Under these circumstances, the Appellant/applicant has chosen to file substantive Appeal against the original order and in the process there is a delay of 5 years and by this Application the said delay may be condoned.

4 In order to substantiate his say, the learned counsel has placed additional bunch of documents, copy of which is given to the other side. It is pointed out that on 21 December 2006, that is after six months from the aforesaid so­called decree of divorce, the husband has taken out Tata AIG life Policy, wherein in the column of “spouse”, the name of the present applicant is shown as wife. It is submitted by the learned counsel that that itself shows that the Respondent wanted to keep the Appellant in dark about the divorce decree otherwise after six months from the date of the divorce, he would not have mentioned the name of his wife as nominee. It is submitted by him that in the column of “nominee”, the name of the wife is shown, which form was filled in after six months since the decree of divorce is passed by the trial Court.

5 The learned counsel has also relied upon the certificate issued by; the Secretary where the premises is located, that is Matruprem Cooperative Housing Society which is dated 22 February 2008. The certificate is issued by the Chairman/Secretary/Treasurer of the society, wherein it is stated that the applicant is residing with the Respondent in room No.G/2 from May 2003 till date i.e. 22/02/2008. As per the certificate, the name of the applicant is shown as wife. It is therefore obvious that after obtaining the decree the Respondent kept the lady in dark about such decree which strengthens the argument of the applicant that summons of the original proceedings was never served on the wife and accordingly the behaviour of the Respondent in this behalf itself speaks about the same.

6 The learned counsel has relied on bailiff’s report which is important document to show that whether the court proceedings were served on the wife or not. The bailiff’s report is at page 44. In the report, the bailiff says that, as per the said report, when the bailiff went to serve the summons on 24 November 2005 it was a working day i.e. Thursday. As per the bailiff’s report, he went to serve the summons at the premises in question and that he found the applicant/lady in house, but she refused to accept the summons and therefore he wanted to paste the same outside the house, but she did not allow him to do so. Accordingly, he prepared a report as “un­ served”. The word “unserved” is very much finding place in the report at page 44. It is submitted by Mr. Khandeparkar, the learned counsel that if the summons is unserved, it cannot be said as valid service and, therefore, the Family Court Judge has committed a grave error in proceeding with the matter, treating that wife is served and she is not appearing in the matter. It is submitted that since the concerned Respondent has committed mischief and fraud by which the decree is obtained, delay in filing Family Court Appeal is required to be condoned. It is submitted that after the application under Order 9, Rule 13 of Code of Civil Procedure (CPC) for exparte decree is rejected, immediately this Appeal is filed within a period of two months.

7 The learned counsel appearing for the Respondent, on the other hand, submits that since the bailiff in his report has said that the applicant has refused to accept the summons, according to him, refusal of court summons is valid service and, therefore, the Family Court rightly proceeded with the matter, treating that wife has not put her appearance. The learned counsel further submits that it is true that the Respondent, at the relevant time, was serving in a particular company and the date on which the summons was served was a Thursday. The learned counsel states that the applicant is a serving women as she was serving as Office Assistant in Rashtriya Minerals, Bhayandar and, therefore, in fact she was in service on the relevant day.

8 The learned counsel for the Respondent has frankly stated that it is true that the wife was serving at the relevant time, but according to him, once the bailiff has given the report that she refused to accept the notice, it should be treated as a valid service. He submits that the bailiff has also not mentioned any time in the report. He is not aware whether, on the relevant day, his wife has taken leave from the employment or not. It is further submitted by him that refusal is a valid service. He further submits that it is true that even after decree, he continued to stay with the wife for more than 16 months. The learned counsel submits that even after the decree, within 20 days, he sent a registered letter to his wife, but according to him, he could not serve, as the endorsement is “unclaimed”. He further stated that even after divorce for more than 16 months he was residing in the house and thereafter he filed a Suit for getting possession of the flat in question.

9 We have heard both the learned counsel appearing for the parties at length. We have also gone through the application filed by the applicant and reply filed by the Respondent and we have also gone through the bunch of documents which we have discussed above. The present case reflects the sorry state of affairs as to how lightly the decree is passed by the Family Court without verifying whether the summons has been served upon the concerned person or not. When a Family Court decides a family dispute, the Judge in charge of the matter, is required to be doubly sure that the court summons is properly served on the party concerned in a case where no appearance is made by the husband or wife, as the case may be, before the Court. As per the bailiff’s report, it is clear that the bailiff has not tried to see that somebody identified the lady who was in the house. It is not in dispute that bailiff was not knowing the lady personally nor the bailiff had made any attempt to keep any witness present to identify the person who was in the house nor the summons was served in the presence of the husband. The bailiff therefore put an endorsement of “unserved” and there is no endorsement of service by refusal, which aspect is very well clear, as per the report of the bailiff. Inspite of the same, the concerned Judge, in our view, is, in a most casual manner treated the said bailiff’s report as if the Respondent is served. 10 It is unfortunate that even while deciding an application under Order 9 Rule 13 of CPC, the concerned Judge has not seen the summons and endorsement on the summons by the bailiff shows as “unserved”.

11 Be that as it may, once there is an endorsement of refusal by a party, the person who is serving the notice is required to point out that he has identified the person and the same person either by the party to the litigation or by punchas or neighbours in the area. As pointed out above, the bailiff was not knowing the lady concerned, nor she was identified by anybody, the learned counsel for the Respondent frankly accepted the fact that that bailiff was not knowing the lady and there is nothing in the report that somebody has identified the lady. Looking to the bailiff’s report, it is clear that the bailiff’s report clearly shows that notice is unserved. If there is unserved notice, the concerned Judge was required to take care by issuing fresh summons and verifying himself that there should be a valid service of notice. In case of doubt, the concerned Judge should issue fresh summons as the Judge is not required to decide the matter in great haste without verifying whether the court summons is served or not, as ultimately the Court is required to do justice between the parties in accordance with law.

12 By reading the report of the bailiff as we have indicated above, the Judge should have issued fresh summons as the endorsement put by the bailiff is “notice unserved”. It is not in dispute that the applicant was serving at the relevant time. The learned counsel for the applicant states that the date on which the summons was served was a working day as it was a Thursday. It is not in dispute that even after the aforesaid decree, the husband continued to reside with the wife for 18 months in the same house and thereafter took out proceedings for taking possession by getting himself out from the premises. It was a working day and naturally the applicant who is residing in the same house with the husband, would never expect that the husband will go the Court from the house straightway for filing an application for divorce.

13 It is not in dispute that even in the Tata AIG Life policy form which the husband has signed it, clearly shows that the name of the nominee is shown to be the applicant/wife and that form has been filled after six months from the so­called divorce of decree.

14 The aforesaid factual aspect makes the case absolutely clear that in the instant case, the Respondent tried to keep secret regarding the fact of divorce decree from the wife for a long time and subsequently tried to take out proceedings after about 16 months since decree of divorce was passed. In the meanwhile, they continued to remain as husband and wife even as per the certificate issued by the Cooperative Housing Society where the house is located. 11 911-cam-76-12.sxw 15 It is required to be noted that the present application is filed before this Court on 9 March 2012. The Respondent/husband filed caveat and subsequently remarried on 9 April 2012 and the summons of this Civil Application was served on 11 April 2012. Whether the second marriage is valid or not or what is its effect is not required to be examined in this application. In our view, the applicant has made out a sufficient ground for condonation of delay as, in our view, from the documents and evidence, it is clear that the trial Court had not taken care to find out whether the court summons was legally served and there is an endorsement that it is unserved. It is an admitted fact which is not denied by the Respondent that there is nothing on record to show that the bailiff has tried to identify the person before putting an endorsement on summons, nor any neighbours were called, nor husband was present and in whose presence the court summons was served.

16 It is well known proposition of law that fraud vitiates everything. In a given case, delay of few days may not be condoned and in a given case, delay of years can be condoned, as per the facts of the case. The Court is required to consider such aspect from case to case basis.

17 Considering the conduct of the Respondent as we have indicated above and considering the report of the bailiff which is prima facie suggestive of the fact that it cannot be said to be a valid service of summons so far as the wife is concerned. Under these circumstances, we are inclined to condone the delay. Accordingly, Civil Application is allowed. The delay in filing the Family Court Appeal is condoned. We may clarify that the observations made hereinabove, should be construed only for deciding the delay condonation application. 18 In view of what is stated above, the Civil Application is disposed of and the Rule is made absolute accordingly. There shall be no order as to costs.

19 The copy of this order may be served on all the Family Court Judges in the State so that in future proper care can be taken when there is an endorsement of refusal of notice, before hearing and/or taking decision on the Petition for divorce on exparte basis.

(ANOOP V. MOHTA, J.) (P. B. MAJMUDAR,J.)

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist