R.S.CHAUHAN, J. - (1.) THE present appeal arises out of the order dated 27.10.2004 passed by the District & Sessions Judge, Tonk whereby the learned Judge has dismissed the application under Order 9 Rule 13 of the Civil Procedure Code" (henceforth to be referred to as 'the Code' for short) and has refused to set aside the ex-parte order dated 23.09.2000, whereby the respondent's application under Section 9 of the Hindu Marriage Act, 1955 (henceforth to be referred to as 'the Act' for short) was allowed.
(2.) THE brief facts of the case are that about 17 years ago, the appellant-wife and the respondent-husband were married in village Kalanada, Tehsil Devli, in accordance with Hindu customs and rites. About 7 or 8 years ago, the "Gong " ceremony was performed and the wife was brought by the respondent to his village at Banediya. However, despite living together for about 5 to 6 years, the appellant-wife could not bear any child. Since she could not bear any child, the husband's family and husband started treating her with cruelty. They would not only comment on her infertility, but would also tell her to go and marry with another person in accordance with 'Nata ' practice prevailing in their community in Rajasthan. Although the wife requested the husband to get her medically checked up and to go for medical assistance in getting her pRegulation nt, the husband refused to do so. Every time she would request him for medical help, the husband would tell her to get the money from the parents. Moreover, he would always tell her that the money it will take to get her pRegulation nt, in the same amount he could remarry another woman. According to her on 29.09.1998, on the day of Janmastaini, the husband and his family members locked her in a room for about three days and denied food and water to her. Thereafter, her brother Shivaji came to her matrimonial home and took her to her parental place. Since then she is staying at her parental place. Since she was staying away from the husband, since she was unable to look after herself, on 11.11.1998 she filed an application under Section 125 of the Criminal Procedure Code (henceforth to be referred to as 'the Cr.P.C.', for short). In order to deny maintenance to her, on 23.04.1999 the husband filed an application under Section 9 of the Act for restitution of conjugal rights. She further claimed that on 17.07.1999 and 10.09.1999, the process server came to her house, but found no one at the house. Even the summons dated 22.01.2000 were not served upon her. On 22.01.2000 as the Court Staff was on strike, a common date of 10.03.2000 was given. Since the appellant is an illiterate woman, she had no knowledge that a common date has been granted in all the cases. Hence, she could not appear before the Court on 10.03.2000. On 10.03.2000, the learned trial court proceeded ex parte against her. Eventually, the learned trial court delivered an ex parte judgment on 23.9.2000. As soon as she came to know that an ex parte judgment had been pronounced against her, on 20.12.2000 she submitted an application under Order 9 Rule 13 of the Code for setting aside the ex-parte judgment and decree. However, vide judgment dated 27.10.2004, the learned trial court has dismissed her application under Order 9 Rule 13 of the Code. Hence this appeal before this Court. Mr. M.S. Beg, the learned counsel for the appellant has argued that in the summons issued for the appellant, the name of her father was incorrectly shown as "Dhanna Dhakad" whereas his name is "Manna Dhakad". Therefore, the notices were not served upon the appellant. Even earlier, according to the process server, he could not locate anyone at her house on two previous occasions. Since she is an illiterate woman, she had no knowledge that a common date has been given as the next date in the case, namely 10.03.2000. Hence, she was unable to appear before the Court. Considering the fact that the grant of decree of restitution of conjugal rights would deprive her of maintenance under Section 125 of Cr.P.C, the ex-parte decree should have been set aside.
(3.) ON the other hand, Mr. M.F. Beg, the learned counsel for the respondent, has argued that according to the process server he had twice visited the appellant's house. Therefore, he was well aware about the location of her house. The notice dated 06.12.1999 was served upon the appellant and the appellant had placed her thumb impression on the said notice. In the said notice, her husband's name was clearly shown as Kajod. Therefore, merely because her father's name has been shown incorrectly, it would not make any difference. Moreover, she has never denied the fact that the thumb impression on the notice is not hers. Furthermore, she never claimed that there is another lady in the name of Kamla W/o Kajod residing in her village Bhagwanpura. Hence, she has been served properly. He has further argued that since the appellant did not resume the cohabitation within a period of one year from the date of the ex parte judgment and decree, the respondent sought divorce and was granted divorce by the learned court. Subsequently, he has re-married.;