INDIRA KASHYAP Vs. K N KASHYAP

JUDGEMENT

(1.) This petition under Article 136 of the Constitution asking for special leave to appeal to this Court against the appellate judgment of the High Court of Himachal Pradesh at Simla is by the wife and challenge is to the appellate order upholding rejection of an application under 0. 9, R. 13 of the Code of Civil Procedure in a divorce proceeding. This Court initially issued notice to the respondent-husband and later required the three children of the parties also to appear with a view to exploring the possibility of a rapprochement. Parties and their children appeared and counsel for both the parties were heard at length. Counsel suggested that the correspondence between the parties which had been exhibited and heavily relied upon by the High Court should be seen by us. We, therefore, called for the original documents and deferred pronouncing our order until now.

(2.) The respondent-husband is a senior member of the Indian Administrative Service and at the relevant time was Excise and Taxation Commissioner of Himachal Pradesh at Simla. The wife served as a senior lecturer in Hindi in the Mata Sundari College at New Delhi. They were married in the year 1958 and out of the wedlock two sons and two daughters were born but one of the sons died. The other son and the two daughters are at present grown up.

(3.) The husband applied to the District Judge at Simla for a decree of divorce in June, 1977. On September 3. 1977, both spouses appeared before the District Court and at their suggestion, the proceeding was adjourned till May 18, 1978, leaving a long gap for the parties to improve their mutual relationship. On the adjourned day, the wife did pot appear and the case was set ex parte and was adjourned to May 26, 1978 for trial. On that day the husband's evidence was recorded and an ex parte decree for divorce was passed. On July 7,1979, the wife applied under Order 9, Rule 13 of the Code along with an application under Section 5 of the Limitation Act contending that she obtained knowledge of the exparte decree on June 20, 1979, when one Asha Swarup informed her about it. The husband entered contest. The wite examined four witnesses on her side while the husband produced six including himself. Several documents were produced on either side. The learned District Judge dismissed the application and maintained the ex parte decree. An appeal was carried to the High Court under Order 43, Rule 1 of the Code and that also was dismissed. This has led to the filing of the petition for special leave.