SHRADHANJALI SAHOO @ LINA Vs. SURENDRA NATH SAHOO

JUDGEMENT

(1.) By this appeal filed under Section 28(1) of the Hindu Marriage Act, 1955 r/w Section 104 and Order 43 Rule 1 of the Code of Civil Procedure, the Appellant seeks to challenge the order dated 29.03.2005 passed by the Ld, ADJ thereby dismissing the application filed by the Appellant under Order 9 Rule 13 Code of Civil Procedure to seek setting aside of the ex parte judgment and decree dated 25.09.2003.

(2.) Brief facts of the case as stated by the Appellant in the appeal are that she derived the knowledge about the pendency of the divorce petition filed by the Respondent only before the Ld. Family Judge, Cut-tack, Orissa. The Appellant states that in the said proceedings pending before the Cuttack Court she was informed by the Respondent about the said divorce petition filed by him on 5.9.2002 and also service of the Appellant being effected through publication in the newspaper 'Statesman' dated 7.9.2002. After having gained the said knowledge, the Appellant could lay her hands on the said newspaper dated 7.9.2002 only on 13.09.2002. It is further stated that due to the paucity of time and the fact that the Appellant was staying at a distance of about 2000 kilometres from Delhi with her small daughter, she was not in a position to appear before the concerned court at Delhi in the divorce proceedings. The Appellant also states that she sent a letter dated 16.09.2002 to the Ld. Additional District Judge inter alia praying for the payment of Rs. 5000/- towards litigation expenses to contest the case in Delhi., The father of the Appellant also wrote a separate letter to the Ld. AdJ informing the judge about the decision of the Appellant to file a transfer petition before the Hon'ble Supreme Court of India. She further states that the Appellant sent a letter of request to the Hon'ble Chief Justice of India dated 7.10.2002 for the transfer of the HMA case No. 888 of 2001 pending in the Tis Hazari Courts to the Family Court, Cuttack, Orissa.

(3.) Challenging the said order, counsel for the Appellant submits that the Ld. Trial Court has ignored the fact that the Appellant was a distressed woman with No. financial source and was not in a position to appear before the said court at Delhi, more particularly, when the Appellant was also having a small child of two years. Counsel further submits that the Appellant came to know about the filing of the said case by her husband only in the maintenance proceedings at Cuttack when she was told about the filing of the divorce petition by him and her service through publication in the newspaper 'Statesman'. The contention of the counsel for the Appellant is that the Appellant was never given any copy of the divorce petition and in the absence of the same, the Appellant was not in a position to contest the divorce case. Counsel also submits that the ld. Trial Court has not appreciated the fact that the Appellant could not have appeared before the said court due to insufficiency of time for her appearance before the court. In support of his argument, counsel for the Appellant has referred to Order 9 Rule 6(c) Code of Civil Procedure. Counsel for the Appellant further submits that the Ld. Trial Court has wrongly observed in the impugned order that the father of the Appellant had presented the application in the court himself. Counsel submits that the fact of the matter is that the said application was sent by the father of the Appellant as well as by the Appellant by post. Counsel further submits that the Appellant had never appeared before the Supreme Court also and the transfer petition was filed by the Legal Aid Committee of the Supreme Court on the request sent by the Appellant by post. Counsel thus submits that the nonappearance of the Appellant before the said court was neither intentional nor deliberate but was due to the aforesaid bona fides.