Gokal Chand Mital, J. - (1.) Nahar Singh belonged to Jullundur district whereas Smt. Dalip Kaur belonged to Sangrur district. They were married in 1951 and soon after the marriage, they went to Scotland (U.K.). In fact Nahar Singh had come from U. K. to get married. Out of the wedlock, three children were born but two daughters survived. Both of them continued to live in U. K. although separately because of certain differences between them. The husband came to India in 1972 and filed a petition for divorce at Jullundur on the ground that his wife had changed her religion and had become Christian. Her address of Scotland was given in the petition. However, she was not served. Ultimately on 18-4-1972, it was ordered that she be served by publication in Indian Express, New Delhi. The publication was made on 22-7-1902. On 21-8-1972, order for proceeding ex-parte was made. On that date two witnesses were examined and on 23-8-1972, ex-parte decree of divorce was granted to the husband. The wife had taken proceeding against the husband for maintenance in Scotland and in those proceedings, from the attorney of the husband, she came to know on 15-5-1975 that he had obtained a decree of divorce in India. At that time the wife was living in Scotland. On 12-6-1976 she filed a petition under Order 9, Rule 13 of the Code of Civil Procedure before the Jullundur Court which had granted ex-parte decree of divorce, for setting aside the ex-parte judgment and decree and the proceedings, and took up the plea that she came to know of the ex-parte decree of divorce on 15-5-1975 and came to India on 23-5-1975 and on 11-6-1975 she came to know of full particulars of the case in which ex parte proceedings were taken and decree passed. Hence the application was being filed on the following day and was within limitation. Thereafter she again went back to Scotland after appointing a Special Attorney to continue the application. The statement of the Special Attorney, namely, Bhajan Singh appeared as R. W. 1. In rebuttal, Harmegh Singh appeared as R. W. 1. The Court below dismissed the application by order dated 19-3-1980 on two grounds : (1) that the application was not proved to be within time as the applicant had failed to prove that she came to know of the decree within a period of one month from the filing of the application for setting aside ex-parte decree, and (2) that the applicant failed to prove if the address furnished by the husband in the divorce petition was wrong. The wife has come to this Court in this appeal.
(2.) After hearing the learned counsel for the parties, I am of the view that this appeal deserves to succeed. Her clear case was that she came to know of the ex-parte decree of divorce on 15-5-1975 from the attorney of the husband in Scotland and got knowledge of the full particulars of the case on 11-6-1975 and filed the application on 12-6-1975. These facts have not been controverted by the husband. Accordingly, the Court below was in error in coming to the conclusion that the application was barred by time.
(3.) As regards service of the wife in divorce proceedings, it is not disputed that she was not personally served. She was served by way of substituted service by publication in a newspaper of New Delhi. If it had been a case that she had refused service, it would have been different. Since she was living in Scotland, on the peculiar facts of this case, between husband and wife the substituted service by publication in a newspaper of New Delhi is not considered sufficient. Accordingly, I hold that it is not proved in the case that the wife was served and, therefore, sufficient ground has been made out to set aside the ex-parte decree and the proceedings.;