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Arpita (home)     11 July 2011

Unsuccessful Attempt - Serving Summons

Hello Experts,

 

I am new to this website and i really need some serious advise. I filed Crpc 125 against my husband who is residing abroad and i have no idea where exactly he resides. He is foreign citizen and i tried approaching foreign embassy abroad but they would not give me his details neither they will intervene in my case.  Local court tried serving him summons via ministry of home affairs still in vain. Registered Post came back as unclaimed and i am totally lost what should i do now ? We couldn't serve him summons and as a result my case is pending in local court. What should i do in order to serve him summons abroad ?



Learning

 12 Replies

Arpita (home)     11 July 2011

In addition my husband doesn't have any bank account or property to be seized.None of my inlaws resides in india all of them are abroad.His father has one house which according to my lawyer i cannot claim it .Even i get any exparty orders against him i wouldn't get any justice since he is still abroad.....he is not answering my phone calls neither he is calling me. I have filed 498 (a), Crpc 151 when he was in india. He fled away out of country when i filed those cases now i need maintenance since i cannot maintain myself. I am trying to serve him summons abroad but it's all in vain.

Saurabh..V (Law Consultant)     11 July 2011

@Arpita

 

I completely understand your situation and have all sympathy for you. At this stage all you need is strong support by your family and friends. Also you have to make yourself strong to stand against this test of time.

 

In such a case, you can file an appeal in High Court of your state for bringing your case to justice. Here it is important that he is "proclaimed offender" who ran away after a criminal case was lodged against him.

 

Here my apprehension on your relation is that how come a wife don't know where her husband is? How do you don't know his nationality? How could you marry a man about whom you know nothing? It seems to me that you got blind-folded by his green-card and in this blindedness you married him. You shoudl realize that this behaviour of yours gave him the opportunity to fool you.

 

//peace

/Saurabh..V

1 Like

Arpita (home)     11 July 2011

@ Saurabh thanks for your reply, I have known my husband's last known address and after ministry of home affairs attempt we have come to know that he has changed his current address and after that we were not able to track him at all. Neither i am getting any help from higher authorities it seems i have to give up now. Is there anything else i can do in my best interest ?

rajkumar (student)     12 July 2011

You can't do anything in your case ,as he is in foriegn nation and a foriegn citizen ,what u are going to do with ur orders in paper .U can make him as proclaimed offender in India. If he comes to India you can arrest him with ur warrents ,for that u have to keep ur eyes wide open till he comes.Better suggestions was to forget the person and apply for a divorce and u will get exparte divorce .

(Note: Next time if u marry ,marry a rich person who is a Permenant citizen of India ,know all his bank balance ,his entire propery details ,ect ,So that u can file 125CRPC, D.V, 498 A and u will definetly recover ur losses from ur first marriage)

2 Like

VictimOfBiasLaw (Professional)     12 July 2011

ha ha ha :) ..... good note rajkumar

**Victim** (job)     12 July 2011

Also after ex-party order your husband will start his exparty proceedings in india so that he can safely land india and if i m not wrong he will come only when u get married or engaged again so that u don't create any problems for him..........if the worst comes to worst he will try to harass u when u have already started thinking of ur new life because in ur case u were not able to serve him summons if he wishes he could harass you by challenging exparty order in higher court.

 

My advise to you is wrap this matter within ur family itself so that there won't be any future problem.

Arpita (home)     13 July 2011

Hello experts i am just concerned that since Ministry of home affairs could not serve him summon even though i go for exparty divorce i am worried if my husband will turn back with intention of revenge and he might try to harass me by going higher court challenging exparty order what should i do if i don't want any maintenance and seek divorce without any maintanance or alimony ? Is there going to be any restriction on my husband if i get exparty divorce ?


(Guest)

@ raj kumar

Sir "To err is human".Everybody makes mistakes and the fact is many times we makes mistakes due to lack of knowledge or unawareness. It seems u r making fun of her.

1 Like

Adv. Chandrasekhar (Advocate)     13 July 2011

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. 

    

2 Like

Arpita (home)     13 July 2011

@ Adv. Chandu thanks for your prompt response

The summons which was returned earlier had the same stamp "Unclaimed" and the summons which was returned by ministry of home affairs has same stamp "Unclaimed" so lower court has asked us to present the new address and necessary information which would be helpful for us to trace him. While speaking with the concerned person in ministry of home affairs - Delhi i was told to provide sufficient information until that they can't help me with anything. According to them they tried serving summons via registered post and they don't serve summons through any processor in foreign land. I will speak to my lawyer seeking permission from court for newspaper publication. 

After reading your post i still feel that it is tough to extradite my husband meanwhile i will try my best to serve him summons. It looks like execution of Crpc 125 is limited to indian jurisdiction. 

When i filed Crpc 151 and 498 a against him he left india the same day itself and local cops refused to register any FIR since my husband left country the same day itself. 

rajkumar (student)     13 July 2011

Originally posted by :shally karloopia
"
@ raj kumar

Sir "To err is human".Everybody makes mistakes and the fact is many times we makes mistakes due to lack of knowledge or unawareness. It seems u r making fun of her.
"

Mr/Mrs Shally, 

   Iam a law college student ,I didn't make any fun on her ,First see the attitudes of the women ,here also the women never bothered about her marriage life was ruined , but  this honorable women is only bothered  only about  getting maintenance  and she is very much worried that she cannot successfully serve the sumons so that she can claim maintenance . See here how many efforts she took to serve the summons ,she approached internal ministry affairs, external ministry affiars ect ,ect , instead of this  if she really made all the efforts of searching her husband's whereabouts for  saving the marriage life ,i will really have pity on her.

**Victim** (job)     13 July 2011

@ Rajkumar you are absolutely right  atleast there are some limitations of indian jurisdiciton. How the hell maintenance case is held as criminal case ? Crpc provisions should be for criminal matter only not civil matter. If you read arpita's earlier post it's clearly mentioned that when her husband came to india they filed 498 (a) and crpc 151 against me although he was lucky enough to take off the same day itself. In this matter they really wanted to impound his passport. I liked the way Adv. Chandu explained the whole matter to arpitaji but he forgot to mention how long it will take in order to proceed with the whole process. To my knowledge it takes years and years. Also if india considers maintenance case as criminal case but not the other countries consider this as criminal case. If Arpitaji really needs justice then she is free to go High court and ask for help but once again there are lot of restrictions concerning deportation.


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