PRAKASH TATIA, J. - (1.) HEARD learned Counsel for the parties.
(2.) THE appellant, wife of the respondent, being aggrieved against the ex parte divorce decree dated 25.5.2005, has preferred this appeal to challenge said ex parte decree. Brief facts of the case are that according to the respondent -husband of the appellant, appellant's and respondent's marriage took place 15 years before the filing of the divorce petition by the respondent before the court of District Judge, Bhilwara in the year 2002. Out of the wedlock, one son Vinod and one daughter Deepa born to them. At the time of the filing of the divorce petition, the age of Vinod was 12 years and the age of Deepa was 8 years. The respondent -applicant submitted that the appellant and respondent and their children were surviving on the income of respondent's father Bhairu Lal. The respondent is an innocent person and is not in position to do anything. The appellant left the respondent about four years ago and started living at Bhuwana in District Udaipur. She without any reason, deserted the respondent, It is also submitted that the appellant cruely treated the respondent when she was living with the respondent. It is submitted that the respondent was of poor health and he was even beaten by the appellant and on one occasion, blood came out because of beating by the appellant given to the respondent and the respondent had to take treatment from private clinic. With these allegations, the divorce petition was filed by the respondent in the trial court on 4.3.2003. The notices were sent to the respondent which were returned as unserved and, thereafter, again notices of respondent were sent though the court which were returned and ultimately, the notices were served upon the wife of the respondent -appellant and as per the report, through her family member. The process server reported that notice was accepted by appellant's brother's wife. The process server obtained the signatures of appellant's brother's wife Smt. Rekha w/o Bhupesh Sharma. Thereafter, power was filed on behalf of the appellant before the trial court and time was sought for filing reply to the divorce petition. Ultimately, on 3.9.2004, when appellant's advocate did not appear before the trial court, the ex parte order was passed by the trial court on 3.9.2004. The appellant's advocate submitted an application for setting aside the ex parte order by showing his personal reason for his absence on 3.9.2004. The trial court allowed the application and set aside the ex parte order vide order dated 26.10.2004 and the case was adjourned to 19.11.2004 for filing reply. Since on 19.11.2004, reply was not filed, therefore, appellant's filing reply was closed and thereafter, the evidence of the appellant was recorded after three adjournments. It appears from the order -sheet dated 13.5.2005 that the learned Counsel for the appellant -non -applicant, stated before the trial court that he informed the appellant -non -applicant about the date fixed by the court and he wants to place on record those letters on record. On 17.5.2005, the appellant's advocate placed on record of the trial court the notice which he sent to the appellant in envelope and which returned back and copy of the inland letter which was also sent to the appellant.
(3.) IT will be worthwhile to mention here that on 17.5.2005, the counsel who appeared for the appellant in the trial court, informed that he submitted Vakalatnama for appellant and said Vakalatnama was given to him by the counsel for the respondent which he has filed believing the counsel for the respondent. It is stated that the appellant did not contact him at any time nor he is knowing the appellant. He sent the notices referred above to the appellant but he could not contact, therefore, he is pleading no instructions. The trial court, after considering the above facts, observed that since information was sent to the appellant by her counsel by registered post and by letter Under Certificate of Posting and the appellant did not contact her advocate, therefore, there is no reason to give further notice by the court to the appellant. Then ultimately, the trial court decreed divorce petition filed by the respondent. Hence this appeal has been preferred but with delay of 584 days.;