ORDER
Motilal B. Naik, J
1. Appellant is the wife of the respondent. She suffered a decree of divorce in O.P.No.121 of 1994 dated 15-3-1995 on the file of the Principal Subordinate Judge, Tenali.
2. The respondent-husband instituted the said O.P.No.121 of 1994 on the file of the Court of the Subordinate Judge, Tenali under Section 13(1)(ia)(ib) of the Hindu Marriage Act seeking dissolution of the marriage on the grounds of cruelty and desertion on the part of the appellant-wife.
3. The respondent-husband has averred in his petition that his marriage with the appellant took place on 15-1-1992 as per Hindu Customs at Nidubrolu in the house of the wife's parents. The appellant-wife joined the society of the respondent-husband and the marriage was consummated. The parties set up their family at Chilumuru and lived happily for one month. According to the respondent-husband, the wife developed aversion towards him within a short period of one month from the marriage for no reasons and used to pick up quarrels with him and other co-daughter-in-laws. The wife seems to have insisted the husband to put up a separate permanent family at Nidubrolu- the parents house of the wife or at any other town. The husband has also alleged that he came to know that his wife was suffering from a disease 'Overian'. According to the husband, on 10-5-92, the appellant-wife picked up quarrels with the husband and left to her parents house with all the jewellery and without the knowledge and consent of the petitioner-husband. Though the husband along with some mediators went to the parents house of the wife on 17-5-92 and requested her to join his society, the wife refused to oblige him. Thus, according to the husband, the appellant-wife has been living away from his society right from 10-5-1992 without any reasonable excuse or permission and such an action of the wife towards the husband is cruel act and therefore, the respondent-husband filed the petition in O.P.No.121 of 1994 seeking dissolution of the marriage on the grounds of cruelty and desertion.
4. It is seen from the lower Court proceedings, the appellant-wife though received notices in the said O.P., but failed to contest the matter and as such she was set ex parte. The respondent-husband examined himself as P. W. 1. On the basis of his sole testimony, the lower Court has concluded thus:
'The unrebutted evidence of P.W.1 clearly shows that the respondent without any reasonable cause subjected the petitioner to cruelty and left his company and thereby deserted him. Therefore, I find good grounds are made out for divorce, and the petitioner is entitled to divorce.'
While holding so, the lower Court allowed the O.P. and dissolved the marriage between the parlies by granting a decree of divorce. It is this order of the lower Court which is challenged in this appeal.
5. On behalf of the appellant-wife, Sri M. Ramaiah, learned Counsel contended that the father of the respondent-husband had established a junior college in Chilumur village in the name of Kolasani Venkatasubbaiah Chowdary and Sri Rama Residential Junior College. The elder brother of the respondent-husband is the principal of the said college, whereas the respondent-husband is working as one of the lecturers in the said College. After the marriage of the respondent with the appellant, as the appellant possessed M.Sc. qualification, she was also appointed as lecturer in the said college with effect from 1-8-1992 and she served as such up to 16-7-1993. While serving in the said college, the appellant-wife prosecuted her further studies in M.Phil from 15-11-1994 to 10-12-1995 in Madras University after obtaining necessary permission from the husband and parents-in-law and was staying in the Presidency College Womens Students Hostel, Chepauk, at Madras.
6. Learned Counsel further contended that in the petition filed by the respondent-husband seeking divorce on the grounds of cruelty and desertion, the address of the wife, for the purpose of serving notices, isshown as 'Flat No.5, Bank of India Staff Apartments, Behind Andhra Bank, Srinagar Colony, Hyderabad-19.' According to the learned Counsel, the said O.P.No.121 of 1994 was filed in the month of July, 1994. Despite the respondent-husband knowing the correct address of the wife, he deliberately chose to give a wrong address intentionally to obtain an ex parte decree of divorce. Learned Counsel has drawn our attention to the postal endorsement to the effect that 'the addresse said to have vacated the premises one year back.' The said endorsement is dated 20-8-1994. Thereafter, the respondent-husband has furnished the revised address of the wife for the purpose of serving notices in the O.P. as 'C/o K.Ramchand, Lecturer in JKC, Plot No.34, SBI Colony, Guntur.' But however, the second notices sent to the revised address also were not received on the wife, but in the name of the wife somebody else has signed, as if to show that the wife has received the notice.
7. Counsel for the appellant-wife contended that the service of notice on the appellant-wife was not effected but however, the respondent-husband managed to obtain somebody's signature on the second notice sent to the revised address. Counsel therefore, contended that the lower Court has not even applied its mind and examined whether the notices were really served on the wife. However, on the basis of the sole and interested testimony of the husband, granted a decree of divorce, though the husband is not entitled for a decree of divorce without proving the grounds urged by him in the said O.P. Counsel, in the circumstances, sought to set aside the order and decree of the lower Court in O.P.No. 121 of 1994.
8. Sri G. Dharma Rao, learned Counsel appearing on behalf of the respondent-husband, on the contrary contended that the lower Court is justifying in dissolving the marriage between the parties as pleaded by the husband and there is no infirmity in the said order. However, Counsel pleaded that the matter could be remitted to the lower Court for fresh adjudication, if this Courtdisbelieves the version of service of notice on the wife.
9. In the background of the serious allegations made by the learned Counsel for the appellant-wife, we are called upon to examine;
(1) Whether there was service of notice on the appellanl-wife? and;
(2) Whether there was sufficient material before the Court below to grant a decree of divorce in favour of the respondent-husband?
10. We, firstly disapprove the manner in which the lower Court disposed of the said O.P.No.121 of 1994 without ascertaining the truth or otherwise on the question of the service of notice on the wife. It is seen that the respondent-husband had initially shown the address of the wife at Hyderabad as if she was staying in Hyderabad. When a report is received showing that the wife had vacated the premises at Hyderabad one year back, fresh notices were issued to the wife on the basis of the new address furnished by the husband which is at Guntur. Even on the second notices sent to the Guntur address, the signature on the said notices, on verification, is found not that of the wife but somebody else had signed. Thus, the husband has managed to show that notices were served on the wife but in fact, instead of the appellant-wife, somebody has signed on the notices. In these circumstances, we are prima facie, inclined to hold that notices are in fact, not served on the appellant-wife.
11. The lower Court has accepted that notices were served on the appellant-wife and set her ex parte and permitted the husband to adduce evidence. The grounds urged in the petition for seeking dissolution of marriage are cruelty and desertion. The evidence of the husband as P.W, 1 is very cryptic. In this evidence he admitted the marriage between the parties. He stated that the wife has left his society from 10-5-1992 within a period of one month from the date of marriage without any reasonable cause. On the basis of this cryptic sole testimony, the lower Courtdissolved the marriage of the parties on the ground that the wife was cruel towards the husband and has deserted him without any reasonable excuse.
12. It is settled law that when anex parte decree is passed, the aggrieved party has two remedies to challenge such ex parte decree, either by filing a petition under Order 9 Rule 13 CPC to set aside the exparte decree or to prefer a regular appeal against the said ex parte decree. Though the learned Counsel for the respondent-husband pleaded that if the Court finds that the notices are not served on the wife, the matter could be remitted to the trial Court for fresh adjudication, we are not inclined to accept the said submission as it is too late in the day to remedy the infirmity in the impugned order.
13. Even on merits, the lower Court is expected to satisfy itself whether the party seeking dissolution of the marriage on various grounds, even if uncontested by the other side, has placed sufficient evidence before it to grant a decree of divorce. In this context, it is quite essential to advert to the provisions of Section 23 of the Hindu Marriage Act, 1955 which stipulate as under:
23. Decree in proceedings :--(1) In any proceedings under this Act, whether defended or not, if the Court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner (except in cases where the relief sought by him on the grounds specified in sub-clause (a), (sub-clause (b) or sub-clause (c) or (ii) of Section 5) is not in any way taking advantage of his orher own wrong or disability for the purpose of such relief, and
(b) xxx xxx xxx(c) xxx xxx xxx(d) xxx xxx xxx (e) there is no other legal ground why relief should not be granted then, and in sucha case, but not otherwise, the Court shall decree such relief accordingly.
14. Looking to the pleadings in the case on hand, the petitioner in the O.P. (respondent-husband herein) has pleaded two grounds for seeking dissolution of his marriage with the appellant-wife, viz., cruelly and desertion. In the O.P., it is averred that the marriage between the parlies took place on 15-4-1992 and thereafter they lived happily for only a month or so. it is alleged that from 10-5-1992 onwards, the wife picked up quarrels with the husband and left for the house' of her parents without the consent of the husband. It is further averred that the husband has mediated the matter with elders on 17-5-1992 but was not successful.
15. The above pleading of the husband, in any way, does not indicate as to how the wife has treated the petitioner with cruelty. Either in the pleadings or in his evidence, the husband has failed to mention the physical or mental cruelty meted out to him by the wife. No other witness was examined on his behalf to substantiate his plea in this regard. That apart, there is no other corroboratory evidence to show that the mediation has actually taken place on 17-5-1992. Nothing prevented the husband from examining the so-called elders who mediated on his behalf. But for the reasons best known to the husband, he did not examine any of the mediators on his behalf. The lower Court seems to be carried away with the impression that though the wife was served with notices, did not choose to contest, and therefore, relying on the sole testimony of the husband, has granted the decree of divorce giving a go-bye to the satisfying requirement as visualised under Section 23 of the Hindu Marriage Act, 1955.
16. We do not appreciate the reasoning given by the lower Court for dissolving the marriage between the parties, in the background of the non-fulfillment of the requirement contemplated under Section 23 of the Act by the husband. Therefore, on this ground also, the order and decree of thelower Court in O.P.No.121 of 1994 suffer from infirmity.
17. Having regard to the above discussion and in the light of the provisionscontemplated under Section 23 of the Hindu Marriage Act, 1955 the order and decree of the lower Court passed in O.P.No.121 of 1994 cannot sustain and we accordingly set aside the same. Consequently, O.P.No.121 of 1994 is dismissed.
18. In the result, this appeal is allowed with costs.