- (1.) THIS is a wife's first appeal in a suit for divorce. The husband-respondent was the petitioner in the District Court. The ground on which the decree of divorce was claimed was that there was no restitution of conjugal rights between the parties for a period of one year and more, after passing of a decree for restitution of conjugal rights on 19th May, 1976, by the Court of District Judge, Jalaun at Orai.
(2.) IN her defence, the appellant did not deny the factum of the passing of the said decree of restitution of conjugal rights on 19th May, 1976, but she pleaded that the decree was passed ex parte against her and she had no knowledge of it until the service of the summons of the present suit for divorce. She further pleaded that she was ever ready and willing to go and live with her husband and it was he who had failed to take her with him. The only substantial issue raised by the District Court in the present case was : Whether the respondent had no knowledge of the ex parte decree dated 19th May, 1976, passed against her for restitution of conjugal rights ? If so, its effect ? On appraisal of the evidence on record, the District Court has found that the appellant-wife did have knowledge of the passing of the decree of restitution of conjugal rights. This finding of the district court is based on two facts. Firstly, that the wife was duly served with the notice of the earlier proceeding for restitution of conjugal rights but despite that, she did not contest the same and allowed it to be decreed ex parte; and did not apply for setting aside of that decree; and secondly, that a notice dated 31st August, 1976, was served by the husband on the wife, by registered post acknowledgment due, informing the wife of the passing of the decree of restitution of conjugal rights dated 19th May, 1976, and asking her to come and live with him within seven days of the receipt of that notice.
(3.) POSTAL acknowledgment due card and the post-office receipt have been produced to prove the service of the said notice dated 31st August, 1976. Against this evidence, there is only a bare denial of the wife in her statement on oath, of knowledge of the passing of the decree of restitution of conjugal rights and of having been served with the notice dated 31st August, 1976. The fact that the wife did not apply for setting aside of the ex parte decree for restitution of conjugal rights on any such ground as want of service of the summons of that suit, leads to the inference that she had knowledge of that suit and she deliberately chose not to contest the proceeding. In consequence, she must be presumed to have had due notice of the date of hearing of that suit and, if that is so, she can also be presumed to have the notice of the passing of the ex parte decree dated 19th May, 1976. Her bare denial is not sufficient to rebut the presumption, particularly, in view of the evidence of service of notice dated 31st August, 1976. Learned counsel for the appellant, however, contended that the appellant having made it clear as the first thing in her written statement and in the suit, giving rise to the present appeal, that she was ready and willing to go with her husband as soon as she had knowledge of the decree, it cannot be said that there has been no restitution of conjugal rights on account of any fault on her part. If there has been no restitution of conjugal rights, the fault is not hers, and the husband cannot be allowed to take advantage of the decree for restitution of conjugal rights as he is only trying to use the decree of restitution of conjugal rights as a stepping stone to divorce when no ground for divorce exists. Learned counsel for the appellant urged that it was the duty of the district court to have made all efforts to bring about a reconciliation between the parties and this not having been done by the district court, the decree for divorce suffers from a material illegality in the exercise of its jurisdiction by the district Court.;