Contn of query on nonacceptance of divorce notice by wife
Prajna Acharya
(Querist) 03 July 2009
This query is : Resolved
Hello Sir,
The details of case are follows
Wife is staying abroad for the last over 8 years & still continue to be abroad. Not even visits India, even if she arrives for a week or so she stays at her mother's place without giving any intimation to husband about her arrival or departure too. he comes to know about the same, after a long time. In such a state, husband thought calling her upon the wife to live a life together & sent a legal notice by RPAD to her London Residence, which was received by her, asking her to come to india & stay together, but she did give a vague reply to the same denying the facts whatever stated in the legal notice.So the husband filed the case for the same. Subsequently the suit summons sent to her by RPAD has not been served neither returned to the court at India & the memo to publish the notice through paper publication in London newspaper was put forth in the court for permission, but the court denied to allow the application stating the reason of jurisdiction. so my question is what is further remedy to serve the court notice or is there any case laws which can help me to get the divorce of my client, exparte.
Kiran Kumar
(Expert) 03 July 2009
Order 5 Rule 25 of CPC, 1908 says;-
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 by post or 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 High Court, if there is postal communication between such place and the place where the court situate.....
well in ur case her mother still can be termed as her agent in such a case u can get the substitued service via her mother, if the court does not permit then follow the above rule.
consult ur lawyer.
SANJAY DIXIT
(Expert) 03 July 2009
Yes Mr Kiran is abs. right. When the legal notice is served on the same address and summons of the divorce case not returned back (sent at the same addresses), the service should be presumed proper and the case should be proceeded ex-parte.
PALNITKAR V.V.
(Expert) 04 July 2009
Sec. 27 of the General Clauses Act is crystal clear on this point. There is presumption o f service if notice/summons is sent by RPAD on correct address, even if the acknowledgment does not come back.
Y V Vishweshwar Rao
(Expert) 05 July 2009
The infroamtion provided by lrd friends is correct and in this case , the knowledge of the proceedigns against a person/him/her by any means can also be treated as service ! family members of a person can be treated as authorised agnets to receive summons ! .
However the court must satisfy that the Summons are proerly served and record sufficient service to set the respondnet exparte !
