Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 6677 of 2018 Petitioner :- Raj Kumar Shukla Respondent :- Principal Judge, Family Court Varanasi And Another Counsel for Petitioner :- Udai Chandani
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Udai Chandani, learned counsel for the plaintiff- petitioner and Shri Manish Goel, learned counsel for the first respondent, Principal Judge, Family Court, Varanasi.
The petitioner is before this Court with request to issue direction to the first respondent, Principal Judge, Family Court, Varanasi to take all necessary steps relating to service of summons and notices upon the defendant-respondent no.2 as provided under Office Memorandum No.12(77)10Judl dated 18.8.2011 issued by Government of India, Ministry of Law and Justice, Department of Legal Affairs (Judicial Section), Shastri Bhawan, New Delhi in Divorce Petition No.1102 of 2015 (Raj Kumar Shukla vs. Mrs. Simone Angele Lempert) and decide the Divorce Petition No.1102 of 2015 within stipulated time, in accordance with law.
It appears that the petitioner was married with the defendant- respondent no.2 on 1.9.2000 according to the Special Marriage Act before the Additional District Magistrate, City, Varanasi and out of their wedlock, a male child was born. It is alleged that the defendant used to go out of the residence of the petitioner without telling anything or giving any information to the petitioner or his family members and when he asked about it, she started to abuse to the whole family on account of which the family of the petitioner was suffering a lot. In the month of January, 2004 the defendant left the residence of the petitioner and did not come back to his residence for four days. When she returned back to the petitioner's residence, she was asked about that, then she started to abuse and threaten the petitioner and his family. Thereafter, without permission of the petitioner and his family members, she went to Savita Guest House situated at Bhelupur, Varanasi to live separately with the petitioner. She filed a Divorce Petition No.602 of 2004 and the same was dismissed by learned Court below on the ground that the entire allegations levelled against the petitioner are unsustainable. After dismissal of the Divorce Petition no.602 of 2004 she did not come back to the petitioner and use to live separately with her only son. After making false passport and visa the defendant absconded to Berlin, Germany and still she is staying there alongwith the son.
It also appears that the petitioner filed a Divorce Petition No.1102 of 2015 before learned Principal Judge, Family Court, Varanasi for according appropriate decree of divorce in favour of the petitioner. The petitioner took steps for service of notice on the defendant on 26.3.2016. When no order relating to ex- parte proceeding was being passed against the defendant, the petitioner approached this Court by preferring Matters under Article 227 No.6616 of 2016 (Raj Kumar Shukla vs. Mrs. Simone Angela Lempert), which was disposed of by this Court on 6.9.2016, asking the Principal Judge, Family Court, Varanasi to decide the divorce petition within eight months. On 14.9.2016 the first respondent directed the petitioner to take necessary action relating to service of notice on the defendant as provided under Office Memorandum dated 18.8.2011. The notices were duly served upon the German Embassy by all the modes of service but the same were returned back on 18.1.2016 by the Embassy of Germany situated in New Delhi with remarks that the embassy is not the competent authority and the same is to be submitted through Ministry of External Affairs, Government of India, New Delhi through appropriate channel.
In this backdrop, learned counsel for the petitioner submits that in the aforesaid divorce proceeding the petitioner took all necessary steps relating to service of notice but at no point of time the Principal Judge, Family Court, Varanasi has proceeded to proceed ex-parte against the defendant-respondent no.2. As per ordersheet this much is also reflected that from time to time the petitioner has tried to serve notice on the defendant but he failed to serve the notice. So far as the step for effectuating service on the defendant-respondent no.2 is concerned, the plea has also been taken regarding the Office Memorandum dated 18.8.2011. Finally, by the order impugned the Court has asked the petitioner to take necessary steps for effectuating service. Once the appropriate steps have already been taken by the petitioner then in such situation at this stage the petitioner cannot be compelled to take necessary steps in the matter. Such situation has impelled the petitioner to approach this Court for appropriate relief.
On the other hand, Shri Manish Goel, learned counsel appearing for the first respondent precisely submits that Order- V Rule 25 of the Code of Civil Procedure, 1908 provides for service where defendant resides out of India and has no agent. The Rule 25 has also been amended on 29.3.1958. Order V Rule 25 of CPC is reproduced herein below:-
"25. Service where defendant resides out of India and has no agent.- Where the defendant resides out of India and has no agent in India empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him (or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail Service or by any other means as may be provided by the rules made by the rules made by the High Court), if there is postal communication between such place and the place where the Court is situate:
Provided that where any such defendant resides in Bangladesh or Pakistan, the summons, together with a copy thereof, may be sent for service on the defendant, to any Court in that country (not being the High Court) having jurisdiction in the place where the defendant resides:
Provided further that where any such defendant is a public officer in Bangladesh or Pakistan (not belonging to the Bangladesh or, as the case may be, Pakistan military, naval or air forces) or is a servant of a railway company or local authority in that country, the summons, together with a copy thereof, may be sent for service on the defendant, to such officer or authority. in that country as the Central Government may, by notification the Official Gazette, specify in this behalf."
HIGH COURT AMENDMENTS Allahabad.- In Order V-
(i) for rule 25, substitute the following rule, namely:-
"25. Where the defendant resides out of India but has an agent empowered to accept service of summons on his behalf residing in India but outside the jurisdiction of the Court, the summons, unless directed otherwise by the Court, may be addressed to such agent and sent to him by registered post if there is postal communication between such place and the place where the Court is sitting. Unless the cover is returned undelivered for want of proper address or any other sufficient reason, the summons may be deemed to have been delivered to the addressee at the time when it should have reached him in ordinary course." (w.e.f. 29-3-1958)
(ii) after rule 25, insert the following rule, namely:-
"25A. Where the defendant resides out of India but has an agent empowered to accept service of summons on his behalf residing in India but outside the jurisdiction of the Court the summons, unless directed otherwise by the Court, may be addressed to such agent and sent to him by registered post if there is a post communication between such place and the place where the court is sitting. Unless the cover is returned undelivered for want of proper address or any other sufficient reasons the summon may be deemed to have been delivered to the addressee at the time when it should have reached him in ordinary course." (w.e.f. 14-4- 1962)".
In this backdrop, Shri Manish Goel, appearing for the first respondent has raised objection that the address of the defendant-respondent no.2 has been given in the plaint in question as Steglitzer Damm 3, 12169 Berlin, German through German Embassy 6/50G, Shantipath, Charakyapuri, New Delhi-110021. The said address does not correspond the amendment so made by this Court and as such, the correct address of the defendant has not been given in the plaint in question. It is sought to be contended that once the detailed procedure is already given in the CPC, then there is no reason or occasion to rely upon the aforesaid Office Memorandum dated 18.8.2011. First the description of the array of parties is to be corrected and only thereafter the Principal Judge, Family Court, Varanasi may be directed to proceed as per amended Order V Rule 25A of CPC.
The argument so advanced by Shri Manish Goel, learned counsel appearing for the first respondent definitely has force.
Considering the above, this petition stands disposed of asking the petitioner to move an appropriate application for correction/amendment in the array of parties specially description of the second respondent within one month's time and thereafter the Principal Judge, Family Court, Varanasi would proceed as per amended Order V Rule 25 of the CPC and try to effectuate the notice on the defendant-second respondent. In case there is no response from the defendant-respondent no.2, then the Principal Judge, Family Court, Varanasi would be at liberty to proceed ex-parte against the defendant strictly in accordance with law.
Order Date :- 17.9.2018 RKP