Decided on October 07,1996

KALI CHARAN Respondents

Cited Judgements :-



Usha Mehra, J. - (1.)Shri Kali Charan respondent herein sought decree of dissolution of his marriage from the appellant Smt.Madhuri under Section 13(1)(ia) and (ib) of the Hindu Marriage Act. In the said petition he took up the ground that he filed a petition under Section 9 of the Hindu Marriage Act for conjugal rights, but the appellant herein (respondent before the Trial Court) refused to live with him. Hence that petition was withdrawn. Thereafter, he filed a petition for divorce on the ground of cruelty which was dismissed by the Court of Additional District Judge on the technical ground that petitioner concealed the factum of consumation of marriage. Since the wife had deserted him hence the present petition on the ground of desertion. In this petition, he alleged that his wife had been suffering from some blood disease which inspite of the treatment has not been cured. Since she was suffering from some disease hence it amounts to mental torture to him. Since they have been residing separately and not cohabited after September,1986 hence this petition.
(2.)Notice of this petition was issued to the respondent (appellant herein). Proceedings of 9th July,1991 show that registered A/D notice was alleged to have been refused by the wife. She was accordingly proceeded ex parte. Ex-parte evidence was recorded on 17th February,1992 and onthe same day ex-parte decree of divorce was passed.
(3.)The appellant having come to know about the ex-parte decree filed an application under Order 9 Rule 13 Civil Procedure Code wherein she took the plea that she never received the summons from the Court nor refused the registered A/D cover. Her father came to know about passing of the ex-parte decree through one Vishnu Lal of the same colony where the brother of the respondent Dalip Chand was residing. This information her father acquired on 26th June,1992. Thereafter counsel was contacted and the application for setting aside the ex-parte decree was filed. This application was contested by the respondent herein. The Trial Court by the impugned order dismissed her application on the ground that though in the application an assertion was made that there was a dispute between her family and the Post Master of the village, but appearing as witness she did not say that there was a dispute with the process server of Aligarh Court or with the Post Master. Even the father did not prove by his testimony that there was a dispute with the Post Master or the process server. The appellant herein (respondent before the Trial court) admitted while appearing as her own witness that she was at her house on 31st May,1991 i.e. the date the process server visited her house. Therefore, relying on the report of the process server of Aligarh Court wherein he reported that the appellant was not available and that she had gone out, therefore, returned the summons and on the refusal report on the registered cover, the Trial Court declined to accept her version. He also took note of the fact that in the application name of Shri Vishnu Lal was mentioned whereas in evidence the name of the person who informed her father has been given as Pokh Raj. In view of this contradiction her application was dismissed.

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