ILABEN RAVJIBHAI PATEL Vs. AMITKUMAR RATILAL PATEL

JUDGEMENT

(1.) The appellant is the original defendant against whom the respondent had instituted the proceedings under the Hindu Marriage Act being Hindu Marriage Petition No.22 of 1998. The respondent had preferred the said petition under Section 13 of the Hindu Marriage Act. The case of the original respondent present appellant before the trial Court was that the respondent present appellant is his legally wedded wife and the marriage was solemnised between them on 10.5.1996 at Anand. The wife after staying with the husband for some time went back to Canada from where she had come for the marriage. According to the petitioner-husband even though he had applied for getting Visa, he could not get the same. The respondent-wife had also shown unwillingness to come to Anand and stay with her husband. On this and other averments the aforesaid petition was filed by the respondent before the trial Court.

(2.) So far as the appellant original opponent of the said Hindu Marriage Petition is concerned, she had sent her written statement from Canada, but thereafter did not remain present during the proceedings. After considering the evidence produced by the plaintiff, the trial Court had come to the conclusion that the respondent had deserted him for the last two years as on the date of filing of the Hindu Marriage Petition. The trial Court found that it is next to impossible for the parties to stay together as husband and wife. The trial Court accordingly decreed the suit on 14.12.1998. The present appellant thereafter preferred an application under Order 9 Rule 13 of the Civil Procedure Code on the ground that she never knew about the decree and because of the short date given, she could could not attend the Court on 6th May 1998 as in order to attend to the Court, she was required to obtain the Visa, etc. In her application she had averred that she approached her Barrister at Canada and thereafter she sent the reply requesting the Court to inform her about the next date. Thereafter, when she came to know that the respondent was going to marry again, she rushed back to India and on making enquiry she came to know that an ex parte decree was passed. The trial Court after hearing both the parties by its judgment and order rejected the said application against which the appellant wife filed this appeal from order under Order 43 Rule 1 of the Civil Procedure Code.

(3.) I have gone through the papers as well as the impugned order. It is required to be noted that before preferring the application under Order 9 Rule 13 the applicant had preferred an application for condonation of delay, which was granted by the trial Court. In her application under Order 9 Rule 13 of the Civil Procedure Code the appellant had stated that after the first date of hearing, which was mentioned in the summons was 6th May 1998 and the summons was received by her on 5th May 1998. It is further stated in the application that since the date was so short, it was not possible for her to attend the Court on the very next day i.e. on 6th May 1998.