LEELAWATI Vs. RAM SEWAK

JUDGEMENT

(1.) THIS is a wife's first appeal in a suit for divorce. The husband-respondent was the petitioner in the District Court. The ground on which the decree of divorce was claimed was that there was no restitution of conjugal rights between the parties for a period of one year and more, after passing of a decree for restitution of conjugal rights on 19th May, 1976, by the Court of District Judge, Jalaun at Orai.

(2.) IN her defence, the appellant did not deny the factum of the passing of the said decree of restitution of conjugal rights on 19th May, 1976, but she pleaded that the decree was passed ex parte against her and she had no knowledge of it until the service of the summons of the present suit for divorce. She further pleaded that she was ever ready and willing to go and live with her husband and it was he who had failed to take her with him.

(3.) POSTAL acknowledgment due card and the post-office receipt have been produced to prove the service of the said notice dated 31st August, 1976. Against this evidence, there is only a bare denial of the wife in her statement on oath, of knowledge of the passing of the decree of restitution of conjugal rights and of having been served with the notice dated 31st August, 1976. The fact that the wife did not apply for setting aside of the ex parte decree for restitution of conjugal rights on any such ground as want of service of the summons of that suit, leads to the inference that she had knowledge of that suit and she deliberately chose not to contest the proceeding. In consequence, she must be presumed to have had due notice of the date of hearing of that suit and, if that is so, she can also be presumed to have the notice of the passing of the ex parte decree dated 19th May, 1976. Her bare denial is not sufficient to rebut the presumption, particularly, in view of the evidence of service of notice dated 31st August, 1976.