Case details:
- Marriage: 9.12.1986
- Husband filed a case for divorce on 27.4.1989
- Wife refused to receive the notice of the petition sent to her by the Court on 4.5.1989 vide registered AD cover for the date of hearing on 6.7.1989.
- Respondent/wife on 28.6.1989 was present at her house when the process server showed the summons to her. She read the same and refused to accept it
- Again on 7.8.1989, she refused to accept the notice for 8.9.1989, sent by the Court through process server
- The Court ordered issuance of fresh notices. One was issued vide ordinary process and the other vide Registered AD cover for 8.9.1989. Registered AD was returned to the Court with report of refusal, as she declined to receive the AD notice.
- Under the Court’s orders, summons were affixed at the house of the respondent/wife, but she chose not to appear.
- She was served through public notice on 6.11.1989 published in the newspaper ‘National Herald’ which was sent to her address, 3/47, First Floor, Geeta Colony, Delhi. This was placed on record and was not rebutted by the respondent/wife in any manner.
- After service vide publication dated 8.11.1989 as well as by affixation, respondent/wife was proceeded ex- parte in the divorce proceedings.
- Ex-parte judgment was passed by Addl. District Judge, Delhi on 28.11.1989 in favour of the appellant/husband and the marriage between the parties was dissolved.
- Two years after the passing of the decree of divorce, on 16.10.1991, the appellant got married and has two sons aged 17 and 18 years respectively from the said marriage.
The respondent, after the expiry of 4 years of the passing of the ex-parte decree of divorce dated 28.11.1989, moved an application dated 17.12.1993 for setting aside the same basically on the grounds that ex-parte decree had been obtained by fraud and collusion with the postman etc., to get the report of refusal and on the ground that she had not been served notice even by substituted service and also on the ground that even subsequent to obtaining decree of divorce the appellant did not disclose the fact of grant of divorce to her during the proceedings of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C.). The said application under Order IX, Rule 13 CPC was also accompanied by an application under Section 5 of the Indian Limitation Act, 1963, for condonation of delay.
Hon’ble Supreme Court has elaborated on the principle of “Sufficient Cause” Vs “Good Cause”. This is a vital piece of check the Hon’ble courts should do to ensure there was sufficient cause for the person who was to be present in Court on receiving Court summons/Notice.
From Para 9,
In this context, “sufficient cause” means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously.
From Para 10,
The only difference between a “good cause” and “sufficient cause” is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”.
From Para 12,
In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application.
The following ingredients are necessary to constitute bigamy:
(1) the accused must have contracted first marriage;
(2) he must have married again;
(3) the first marriage is subsisting at the time of the second marriage and
(4) the spouse must be living.
