Jomu Kurian vs Siby And Anr. on 2 June, 1998

    Jomu Kurian vs Siby And Anr. on 2/6/1998

ORDER

   S. Sankarasubban, J.

   1. This Civil Revision Petition is filed against the order dated 30th
September. 1997 in I.A. No. 1650/97 in O.P. No. 131/96. Petitioner is the wife
while the first respondent is the husband. Original Petition was filed for
divorce under the Indian Divorce Act. In the petition for divorce, notice was
ordered to the respondents and the case was posted to 13-8- 1996 for return of
notice. The notice so sent was returned with the endorsement that the address
shown was not correct. Thereafter, notice was sent through Court and the same
was returned with the endorsement that the respondents were residing in Bombay.
Petitioner collected the address of the respondents in Bombay. On 20-11-1996
notice was taken to the respondents correct address in Bombay by registered post
as well as through Court. These notices were again returned unserved on
16-6-1997. Since the address in the above notice was correct, it was.clear that
the respondents were deliberately avoiding the notice. Petitioner filed I.A. No.
1650/97 for appropriate orders seeking substituted service of notice by paper
publication. The above request was rejected by the District Judge by order dated
30th September, 1997, which reads as follows :

     "Since the proceeding is under Indian Divorce Act and in the absence of
specific provision enabling simultaneous service, 1 am not inclined to allow the
petition."

   It is against that this revision petition is filed.

   2. Learned counsel for the petitioner Shri Mathew John brought to my notice
Sections 45 and 50 of the Indian Divorce Act. Under Section 45 of the Indian
Divorce Act, subject to the provisions contained all proceedings under the Act
between the parties are to be regulated by the Code of Civil Procedure. Section
50 of the Act deals with service of petition. It states that every petition
under the Act shall be served on the party to be affected thereby, either within
or without India, in such manner as the High Court by general or special order
from time to time directs, provided that the Court may dispense with such
service altogether in case it seems necessary or expedient to do so. It is true
that Section 45 makes the Civil Procedure Code applicable. But Section 50
insists that the notice shall be served on the party. Thus personal service is
contemplated under the Section. The question is whether in such circumstances,
the Court has got poweY to ordernotice by publication. The proviso to Section 50
gives discretion to dispense with personal service incase it seems necessary or
expedient to do so.

   3. In John Over v. Muriel A.I. Over, AIR 1925 Bom 231, a Full Bench of the
Bombay High Court held as follows :

     "But I may express the hope that this case will be looked upon as an
exception and not as the rule, and that the learned District Judge will not
lightly excuse a party from making any enquiry which he can reasonably be asked
to make, nor if necessary from effecting personal service of the petition,
should circumstances render that course desirable in preference to the practice,
often prevailing in our Courts, of service by registered post."

   In Garao Sangma v. Ranji Mehik, AIR 1929 Cal 276, it is observed thus at Page
277 :

     "Although under Section 50 the Commissioner has a discretion to dispense
with the service in a proper case he must record proper order in the matter."

   In V. Barnard v. T. Barnard, AIR 1947 Mad 437 : 1947 (48) Cri LJ 876, a Full
Bench of the Madras High Court held as follows at Page 437 of AIR:

     "As a general rule service of divorce proceedings or proceedings connected
with matrimonial affairs is required to be made personally, and substituted
service is not usually ordered unless the Court is satisfied that every possible
step was taken to effect personal service."

   4. It cannot be said that the Court dealing with the proceedings under the
Indian Divorce Act, has no power to order service of notice by publication. But
the caution that is made is that the service should be effected by personal
service and only when the Court is satisfied that personal service is not
possible, then service by publication should be ordered. Hence, the learned
District Judge was quite wrong in holding that he cannot order service by
publication. The Court below ought to have looked into the circumstances
detailed by the petitioner and decided the question one way or other.

   5. In the above view of the matter, I set aside the order of the Court below.
Court below is directed to consider the I.A, in view of the above directions.
Before parting with the case, I want to observe that it was not brought to my
notice that any general order or special order has been made by the High Court
of Kerala or any Rules are made by the High Court in regard to service of
petition under the Indian Divorce Act. But so far as the Family Courts, are
concerned, they have been expressly given the power to order substituted service
under Rule 12 of the Family Courts (Kerala) Rules. Hence, such a procedure is
available for the proceedings under the Indian Divorce Act in the Family Court.

   Civil Revision Petition is disposed of as above.

   Give a copy of this order to the Registrar, High Court of Kerala.