impounding of a passport

Querist : Anonymous (Querist) 11 February 2010 This query is : Resolved
a person is staying outside India. The complainant has a copy of the pass port. The allegation of the complainant is that the accused has intentional taken exparte decree of divorce when he was living in India and at present he has gone on employment to Malasia. I want to know how can I summon him the complainant does not know his address at Malasia.

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Parveen Kr. Aggarwal (Expert) 11 February 2010
First of all, in divorce proceedings the parties are not described as 'complainant' and 'accused'and rather called 'petitioner' and 'respondent'.

Regarding service of summons:
Divorce proceedings governed by the Hindu Marriage Act, 1955 section 21 whereof provides that the provisions of Code of Civil Procedure, 1908 (CPC) shall apply to such proceedings.

Section 141 of the CPC provides that the procedure provided in the Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

Explanation.-In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.

So the procedure as provided under Order 5 of the CPC has to be followed. Order 5, Rules 26 and 26-A read as under:

"26. Service in foreign territory through Political Agent or Court
Where-
(a) in the exercise of any foreign jurisdiction vested in the Central Government, a Political Agent has been appointed, or a Court has been established or continued, with power to serve a summons, issued by a Court under this Code, in any foreign territory in which the defendant actually and voluntarily resides, carries on business or personally works for gain, or

(b) the Central Government has, by notification in the Official Gazette, declared, in respect of any Court situate in any such territory and not established or continued in the exercise of any such jurisdiction as aforesaid, that service by such Court of any summons issued by a Court under this Code shall be deemed to be valid service, the summons may be sent to such Political Agent or Court, by post, or otherwise, or if so directed by the Central Government, through the Ministry of that Government dealing with foreign affairs, or in such other manner as may be specified by the Central Government for the purpose of being served upon the defendant: and, if the Political Agent or Court returns the summons with an endorsement purporting to have been made by such Political Agent or by the Judge or other officer of the Court to the effect that the summons has been served on the defendant in the manner hereinbefore directed, such endorsement shall be deemed to be evidence of service."

"26A. Summonses to be sent to officer to foreign countries - Where the Central Government has, by notification in the Official Gazette, declared in respect of any foreign territory that summonses to be served on defendants actually and voluntarily residing or carrying on business or personally working for gain in that foreign territory may be sent to an officer of the Government of the foreign territory specified by the Central Government, the summonses may be sent to such officer, through the Ministry of the Government of India dealing with foreign affairs or in such other manner as may be specified by the Central Government; and if such officer returns any such summons with an endorsement purporting to have been made by him that the summons has been served on the defendant, such endorsement shall be deemed to be evidence of service."