1. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 7-6-1982 of the Lahore High Court, whereby the respondent's constitution petition, arising out of a matrimonial controversy, was allowed.
2. Petitioner filed suits for dissolution of marriage, dower and maintenance against respondent Mumtz Khan, her husband; who admittedly is a soldier and was on border defence duty, at the relevant time. She gave wrong address in the plaints. Despite two reports by the process server that the respondent was a soldier and was for that reason not available on his village address given by the petitioner in the plaints, the learned trial Court repeated direction for substituted service at the same. Wrong address. On respondent's failure to appear, ex parte decrees were passed against him on 15-10-1979. His application for setting aside the said decrees made on 5-1- 1980 was' dismissed as time-barred. His appeal before the District Judge also failed for the same reason. A learned Single Judge in the High Court, however, finding that the provisions of the Soldiers (Litigation) Act, 1,925, were not complied with, set aside the original and appellate orders and directed the trial of the suits afresh.
3. Learned counsel has contended ; that after the divorce had become effective the petitioner entered into another marriage and gave birth to a child, therefore, the High Court should not -hove exercised its discretionary jurisdiction against her, even if` some illegality had been committed in following the correct procedure ; that even under the Soldiers (Litigation) Act, the application for setting aside the ex parte decree would be barred by time if filed beyond the period of limitation prescribed by rules framed under the Family Courts Act ; and that, there was no proof of the fact that the respondent was serving under `special conditions' so as to invoke section 10 of the Soldiers (Litigation) Act, nor the plea was raised before the trial and appellate Courts.
4. The provisions relevant for the present case are as follows :- Family Courts Act, 1964 Section 8(6).-Summons issued under clause (b) of subsection (1) shall be served in the manner provided in the Code of Civil Procedure, 1908, Order V, rules 9, 10, 11, 16, 17, 18, 19, 21, 23, 24, 26, 27, 28 and 29. The cost of summons shall be assessed and paid as for summons issued under the Code of Civil Procedure, 1908.
5. Section 9(S).-If the defendant fails to appear on the date fixed by the Family Court for his appearance then -
(a) if it is proved that the summons or notice was duly served on the defendant, the Family Court may proceed ex parte : Provided---------------
(b) if it is not proved that the defendant was duly served as provided in subsection (4) of section 8, the Family Court shall issue fresh summons and notice to the defendant and cause the same to be served in the manner provided in clauses (b) and (c) of subsection (1) of section 8.
6. Section 9(6).-In any case in which a decree is passed ex parte against a defendant under this Act, he may apply within reasonable time of the passing thereof to the Family Court by which the decree was passed for an order to set it aside, and if he satisfies the Family Court that he was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was heard or called for hearing, the Family Court shall, after service of notice on the plaintiff, on such terms as to cost as it deems fit, make an order for setting aside the decree as against him; and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendants also.
7. The West Pakistan Family Courts Rules, 1965 Rule 4(2).-The plaint under sub-rule (1) shall also contain the following particulars :-
(b) name, description and place of residence of the plaintiff ; Rule 13.-Ex parte decree or proceedings may, for sufficient cause shown, be set aside by the Court on application made to it within 30 days of the passing of the decree or decision.
8. C. P. C. Order V, Rule 28.-Service on soldiers, sailors or airmen. Where the defendant is a soldier, sailor or airman, the Court shall send the summons for service to his commanding officer together with a copy to be retained by the defendant.
9. The Soldiers (Litigation) Act, 1925 Section 4.-If any person presenting any plaint, application or appeal to any Courthas reason to believe that any adverse party is a soldier who is serving under special conditions, he shall state the fact in his plaint, application or appeal.
10. Section 6(l).-If a Collector has certified under section 5, or if the Court has reason to believe, that a soldier, who is a party to any proceeding pending before it, is unable to appear therein, and if the soldier is not represented by any person duly authorised to appear, plead or act on his behalf, the Court shall suspend the proceeding and shall .Give notice thereof in the prescribed manner to the prescribed authority: Provided that the Court may refrain from suspending the proceeding and issuing the notice if-
(a) the proceeding is a suit, appeal or application instituted or made by the soldier, alone or conjointly with others with the object of enforcing a right of pre-emption, or
(b) the interests of the soldier in the proceeding are, in the opinion of the Court, either identical with those of any other party to the pro--ceeding and adequately represented by such other party or merely of a formal nature.
(2) If it appears to the Court before which any proceeding is pending that a soldier though not a party to the proceeding is materially concerned in the outcome of the proceeding, and that his interests are likely to be- prejudiced by his inability to attend, the Court may suspend the proceeding and shall give notice thereof in the prescribed manner to the prescribed authority.
11. Section 10(1).-In any proceeding before -a Court in which a decree of order has been passed against any "soldier" whilst he was serving under any special conditions, the soldier (or, if he is dead, his legal representative) may apply to the Court which passed the decree of order for an order to set aside the same, and, if the Court, after giving an opportunity to the opposite-party of being heard, is satisfied that the interests of justice require that the decree or order should be set aside as against the soldier, the Court shall, subject to such conditions, if any, as it thinks fit to impose, make an order accord--ingly.
(2) The period of limitation for an application under subsection (1) shall be ninety days from the date of the decree or order, or, where the summons or notice was not only served on the soldier in the proceed--ing in which the decree or order was passed, from the date on which the applicant had knowledge of the decree or order; and the provisions of section 5 of the Limitation Act, 1908, shall apply to such apple--cations.
12. Section 11.-In computing the period of limitation prescribed by sub--section (2) of section 10 of this Act, the Limitation Act, 1908 or any other law for the time being in force, for any suit, appeal or application to a Court, any party which is or has been a soldier or is the legal representative of a soldier, the period during which the soldier has been serving under any special conditions, and, if the soldier has died while 'so serving, the period from the date of his death to the date on which official intimation thereof was sent to his next-of-kin by the authorities in Pakistan, shall be excluded Provided that this section shall not apply in the case of any suit, appeal or application instituted or made with the object of enforcing a right of pre-emption (except where the said right accrues in such circum--stances, and is in respect of agricultural land and village immovable property situated in any such area), as the Central Government may by notification in the official Gazette, specify in this behalf.
13. Section 12.-If any Court is in doubt whether, for the purposes of section 10 or section 11, a soldier is or was at any particular time serving under special conditions, or has died while so serving or as to the date of such death or as to the date on which official intimation of such death was sent to his nex-of-kin by the authorities in Pakistan, the Court may refer the point for the decision of the prescribed authority, and the certificate of that authority shall be conclusive evidence on the point.
14. The Soldiers (Litigation) Rules, 1938 Rule 5.--The notice given by the Court under section 6 of the Act shall be in Form B of the Schedule and shall be sent to the prescribed authority care of.
(b) in the case of a reason subject to the-Indian Army Act, 1911 (VIII of 1911), the General Officer Commanding the Division or the Commander of the Line of Commission Area of Sub-Area in which the Court is situated.
15. Rule 8. The prescribed authority for the purposes of section 12 of the Act, shall be- (a)in the case of a person subject to Indian Army Act, 1911 (VIII of 1911), the General Officer Commanding the Division- or the Com--mander of the .Line of Communication Area or Sub-Area in which the Court is situated.
16. Lahore High Court Rules and Orders in Vol. 1, Chapter 6-A, provide the general guidelines regarding Soldiers Litigation, rule 5 thereof makes reference to Order V, Rules 28 and 29 of the Civil Procedure Code, and Rules regarding service of processes contained in Chapter 7 of High Court Rules and Orders, Vol. IV.
17. Disregard of the relevant provisions by the trial Court after it became aware that the respondent was a soldier on Army duty, is so obvious that no reasoning is necessary to show that ex parte action was entirely uncalled for. The petitioner being the wife was -aware of her husband being a soldier. She should have given that address in the plaint on which he' could be served when on duty. If no other details could be provided his Regiment /Unit could be mentioned for service through G. O. C. Or in the other manner provided in the Rules. The certification produced before the trial Court from the competent authority by the respondent showed that no notice was sent through the Army Unit. The petitioner herself is to be blamed for contraven--ing the law including rule 4(2)(b) of the Family Courts Rules; and section 8 of the Family Courts Act was contravened by the learned trial Court. No attempt was made to send the notices to the concerned Army Authorities. The so-called substituted service was to say the least uncalled .For. Above all, and this is extremely important, the learned trial Judge failed to notice that Order V, rule 28, C. P. C. Having been made applicable under sub--section (6) of section 8'of the Family Courts Act; no attempt at all was made to serve the respondent through his Commanding Officer, as required by the said Rule. Thus without compliance with Rule 28, the direction for substitution service was without lawful authority. Consequently the ex parte decree could not be passed.
18. Even a cursory look into the afore quoted provisions of the Soldiers Litigation Act, 1925 by the learned trial Court would have put him on caution. It was not difficult to decide whether the respondent was serving under special conditions. In case of doubt, despite elaborate definition in section 3, reference could be made under section 12. Neither that nor the provision in section 4 was complied with. Moreover, on the receipt of report on summon that the respondent was on Army duty as a soldier, the learned trial Judge had good reason - to believe that he was unable to appear. The proceedings should have been postponed and the prescribed action should -have- been taken. Nothing was done in this behalf. For these contraven--tions of mandatory provisions of the relevant law also the learned trial Court could not have passed an ex parte decree.
19. Limitation for an application for setting aside of the ex parte decree under rule 13 of the Family Courts Rules, as 30 days, could be challenged as ultra vires the test of 'reasonableness laid down in section 9(6) of the Family Courts Act (at least qua the serving soldiers), independently of section 10 of the Soldiers Litigation Act. But it is not necessary to examine that aspect; as section 10 read with section 11 of the Soldiers Litigation Act, makes it amply clear that the period of limitation in this case was 90 days from the decree or knowledge as the case may be. The application was filed within 90 days, it was, therefore, not barred by time. That is not all. The prescribed certificates produced by the respondent having established that his case was on service `under special conditions, it was incumbent on the learned trial Judge to exclude the period of such duty from the period of limitation, under section 11 of the Soldiers Litigation Act. It is not correct to say that proper pleas were not raised before the trial Court. The deposition of respondent contains all the necessary factual information, including proof of the Army Certificates which were duly produced and exhibited. Looked at from whatever angle respondent's application was not barred by tune. The orders/judgments impugned before the High Court were without lawful authority and could be set aside as such.
20. No doubt- the second marriage of the petitioner and the birth of child from that wedlock cannot be ignored, but equally important is the fact that soldiers serving in the national cause, should be protected against infringe---merit of their rights which are guaranteed by the law, including those relating to matrimony. Such a case which smacks of one-sided unfair treatment to a soldier, cannot be ignored either, merely because the wife pursued the litigation and treated the solemn bond of wedlock, to say the least, recklessly and the trial Court failed to observe the ordinary dictates of law. The child it is in record having died, has been saved of the ignominy, which it was exposed by the mother. The law will take care of the second marriage. The approach of the High Court in exercising discretion against the wife in circumstances of the case, is unexceptionable.
21. We find no force in this petition and the same is dismissed.