Arpitaji,
I have got full sympathy with your problem. While I was pondering over how to respond to your first two posts, in the meanwhile, victim gave his response. In response to his response, you completely changed the colour and complexion of your problem and started to talk about "ex-parte divorce", pushing me further into confusion. Any how, to the best of my ability, I try to answer to your questions.
Section 125 maintainance case is quasi criminal case, meaning thereby that it is half civil and half criminal. It is civil because the relief of monthly maintenance, which you are seeking under this section is civil in nature. It is criminal because, the procedure adopted herein is criminal procedure and the court empowered to try this case is criminal court, i.e., magistrate court. But even though criminal procedure is to be adopted, the processing procedure (serving notices and summons etc.) followed by the court is just like civil court. If the husband is living abroad, notice is served through Ministry of External Affairs, but the court first sends its notice/summons to Ministry of Home Affairs and that Ministry takes necessary steps to send the summons to Ministry of External Affairs and as the embassy is within the jurisdiction of Ministry of External Affairs, that ministry takes the responsibility to serve the process through its emmbassy abroad. In your case, the process returned with a remark that the notice is unclaimed. This unclaiming of notice by the addressee can be interpreted by the court in such a way that even though the addressee is existing there, where the "to address" is mentioned, but refused to claim the envolpe contains the court notice. If that is so, it should be deemed to be properly served. You have to put your argument in such a way. If the addressee refuses to accept the envolpe delivered by the court, it is generally marked by the postal personnel as "unclaimed" or "refused". If the addressee is not there at the address mentioned on the envelope, the remark of the postal personnel will be "Not available" or "addressee left the place without providing the forward address". If that is the case, you can ask the court permission to serve the notice by "alternate mode of service". That is paper publication of two leading newspapers of that area. If the court accepts for that, you can do that thing. If any order by the magistrate creates a problem to you in respect of service of notice, you can approach the High Court for proper direction. (Why I am saying this that several people are facing the similar problem and the Govt. of India is not forthcoming with suitable remedial measures to mitiagate or reduce this problem).
Despite all these things, if you cannot trace out your husband's official address, you will face problem for execution of S.125 order of maintenance, if order is passed ex-parte.
But in the case of Section 498-A, the procedure is strictly in accordance with the criminal procedure code and it is purely criminal case. If the accused does not appear in court and got away from the court's jurisdiction, the court will see to which country he has gone. If between that country and India, there is bilateral agreement, then extradition procedure can be initiated. If there is no such bilateral agreement, then look out circular be issued and as and when he lands up in India, if police come to know, they can arrest him. If he has got property (you are saying no), it can be attached and auctioned. He can be declared proclaimed offender. But tlll he appears, the case cannot proceed against him. In this case, you put all your best efforts. If need be, approach the High Court for proper directions so that this person, who committed offence on Indian soil cannot go scot free in foreign land. If you know on which date and at what time he left India, investigative agency can trace him out to which country and which city of that country he has gone. But for moving investigative agency in that direction, appropriate directions from the High Court are required.
National commission of women, through its web site, allows the complainants to register the cases of your nature. You lodge your complaint.
Coming to divorce, if the divorce court comes to decision that he is avoiding the notice, it can proceed ex-parte. If in the ex-parte proceedings, you prove your case and get divorce and remarry some one else, then after that if your ex-husband comes to the court to set aside the ex-parte divorce decree, the court will not hear him and you will get favourable judgment. The court, in such situations, sees only that is there any malafide act on the part of the party who obtained ex-parte divorce decree and if the court satisfies that there is no malafide, it will not disturb the life of the party, who married after obtaining ex-parte divorce decree.
Before concluding this post, without offending anyone, may I ask the hon'ble members that please do not send me PMs, unless it is very sensitive and very personnel matter which cannot be shared on open forum. I receive a lot of PMs, and it is difficult for me to answer the PMs. I prefer to answer on open forum which will be beneficial to several members at the same time.
