VEENA ALIAS BHARTI Vs. PARMIL

JUDGEMENT

(1.) It has to be borne in mind that all frauds, like the wall daubed with untempered mortar, with which men think to buttress up an edifice, always tend to decay of what they are devised to support. Now I turn to the facts of the instant appeal, where the wife/appellant seeks to pick a quarrel with her husband's/ respondent's securing an ex parte divorce decree against her. The respondent moved a petition for dissolution of marriage under Section 13 (1) (i- a) of Hindu Marriage Act 1955 i.e. appellant had treated the petitioner with cruelty and (i-b) that the appellant had deserted the respondent for a continuous period of not less than two years, on 27.04.1989. The appellant was proceeded against ex parte on 08.11.1989. The appellant moved an application under Order 9 Rule 13 CPC for setting aside the ex parte decree, on 17.12.1993, with the principal ground that she was neither served by the summons nor with the Regd. AD cover personally. She further alleged that the respondent colluded with the postman and succeeded in obtaining the false reports of postman. On the basis of the above said false reports respondent was able to get order of substituted service and the publication was made in newspaper 'National Herald', which, too, was never served upon her.

(2.) This is pertinent and significant to note that during those days the maintenance proceedings under Section 125 Cr.P.C. were pending between the parties. The respondent never disclosed this fact that the proceedings of divorce were pending or he had obtained the ex parte decree of divorce. The respondent further concealed this fact when he filed a Criminal Revision Petition No. 116/1991. On 28.08.1993, when the appellant was being cross- examined in the maintenance proceedings, the above said fact was not brought into her notice. However, during the cross-examination of Darshan Kumar, brother of the appellant, conducted on 04.12.1993, a suggestion was given to the witness that the parties had divorced in the year 1989 and the divorce decree was granted by the court of Smt. Kanwal Inder the then ADJ.

(3.) It was explained that the appellant resides with his brother Darshan Kumar. As, he was upset, in order to avoid depression, she left the house of her brother temporarily and went to the house of her sister named Smt. Neelam Rani, resident of 7815/16, Nai Basti, Bara Hindu Rao, Delhi-110006 in the month of June 1989. She went to live with her sister for a period of eight months. She used to attend the proceedings under Section 125 Cr.P.C. from the house of her sister only. She used to visit the house of her brother off and on. She attended the proceedings under Section 125 Cr.P.C. during the year 1989 for about eight to ten occasions but the respondent never informed that he had filed the divorce petition. At the filing of this petition she was getting maintenance at the rate of Rs. 200/-. During the arguments before the court it was disclosed that she was getting maintenance in the sum of Rs.750/-. She has got a daughter born out of the loins of the respondent.