ORDER
Srinivasan, J.
1. It is very interesting case, in which the parties have married admittedly three times. The petition is filed by the wife against her husband. According 10 the address given by the petitioner in the original petition, the respondent is living away in Sri Lanka. The petitioner has also stated that she was serving as senior Head Nurse in Muscat at the time of filing of the petition. According to the petitioner, she married the respondent in accordance with Hindu custom on 7-11-1985 at Thiruchi KumaraVayalur
temple. Again the petitioner converted into a Christian and got married in a Church at Ulsoor, Bangalore on 30-11-1985. For the third time, the parties chose to effect a marriage under the provisions of the Special Marriage Act on 13-12-1985 at Thiruchi.
2. It is seen from the records that the notice in the original petition had not been returned as served. A letter would appear to have been written to the District Judge by the respondent, which was mentioned by the District Judge on the docket oi’ the petition on 7-4-1994. The endorsement made by the District Judge is,
“Letter received from the respondent by Post. Postal ack.
For appearance of petitioner 10.6.”
On 11 -6-1994, the learned District Judge made the following endorsement:
“In view of the correspondence made by respondent to this Court, it is obvious that notice to the respondent is sufficient. Respondent called absent and set ex parte. Petitioner examined as P.W. 1. Exs. A-l to A-6 marked. Heard the counsel for the petitioner. Fororders 24-6-1994”.
Thereafter, a decree was passed by the District Judge.
3. Learned Counsel for the respondent has produced before us a copy of the letter dated 1-8-1993. According to the learned Counsel, the letter which was sent to the District Judge by the respondent is only the original of this letter and we find in the said letter that it is requested by the respondent specifically that is the event of any divorce petition being filed by the respondent’s wife, a copy of the same shall be sent to him to the address mentioned in the letter. Theaddress given in the letter is as follows :–
“John Francis,
MOD (PA Directorate)
P.O.Box 113, Muscat
Sultanate oi Oman”.
Though the endorsement made by the District Judge on the docket of the petition makes a reference to the letter, it is not found among the records sent to this Court. In the judgment of the District Judge, it is stated as follows :–
“In this present O. P. No. 17/92 notices were taken for service to the respondent in more than one occasion; but on no occasion notice was
served on the respondent at Colombo, However, the letter and other complaints sent by the respondent to the petitioner and authorities which are marked herein show that the respondent knows this present proceeding and was wantonly evading the receipt of notice. Therefore, it can be taken that the service of notice on the respondent is sufficient. Accordingly this Court passed an order on 10-6-1994 setting the respondent ex parte.”
4. The above passage in the judgment is not in accordance with the endorsement made by the District Judge on the docket of the petition. In that endorsement, there is no reference whatever to the other correspondences referred to in the judgment. The endorsement refers to only the correspondence between the respondent and the Court. The only correspondence that is mentioned in the docket is a letter said to have been received on 7-4-1994 by the District Judge. The District Judge ought to have kept the said letter on file and marked as a Court’s exhibit, if the Court wanted to rely on the same for holding that service was sufficient. In the absence of any letter among the records, we have no reason to accept the statement of the District Judge that the service of notice on the respondent in this case is sufficient. We have to hold that there is no material on record to prove service of notice in the original petition on the respondent. Hence, we hold that the respondent has not been served and that the decree have been passed without service of notice on the respondent, Hence, the decree has to be set aside.
5. We must also record that a question has been raised by the respondent’s counsel as to the maintainability of the petition under the provisions of the Indian Divorce Act. According to him, the marriage having been performed between the parties under the provisions of the Special Marriage Act for the third time and that marriage being the last one subsisting as between the parties, the petition under the Indian Divorce Act is not maintainable. That question can be raised by the respondent before the District Judge. The respondent’s counsel is requested to advise his client to enter apperance in the original petition without waiting for any notice from Court.
6. The decree passed by the Distrit Court is set aside. Original Petition is remanded to the file of the District Judge, Thiruchirappalli, for fresh disposal in accordance with law. A fresh notice be issued to the respondent by Court in accordance
with the procedure prescribed by law. It is open to the respondent, in the meanwhile, to enter appearance in the original petition. There will be no order as to costs.
7. Order accordingly.
