PRABHU PREMLATA GURPUR Vs. PRABHU SUBRAYA GURPUR

JUDGEMENT

(1.) But for the two questions of law, though somewhat technical, raised by Mr. Suresh the learned Counsel for the respondent in this appeal, I was inclined to allow the appeal and to set aside the ex parte decree obtained by the respondent-husband against the appellant-wife in the circumstances which will be presently mentioned. But the two questions raised by Mr. Suresh are of grave importance though they relate to procedural law. Hence I am inclined to refer the said two questions for the consideration of the Division Bench. The questions arise in the context of the following facts:

(2.) The appellant before me was the respondent in the matrimonial petition filed by her husband (present respondent ) in the City Civil Court. For the sake of convenience the parties will be referred to with their position in the trial Court meaning thereby that the husband will be referred to as the petitioner, husband and to as the respondent-wife. The petitioner husband the respondent-wife were married in the year 1960. They got two daughters out of the marriage. The disputes between them started in October 1979. On 30-7-1980 the matrimonial petition for divorce was filed by petitioner-husband against the wife on the grounds of--- (a) desertion. (b) cruelty. It is noteworthy that the respondent-wife did not make any application for maintenance pendente lite in the said matrimonial proceedings nor has she applied for costs of the litigation; but she duly filed her written statement in the said proceedings on 10-2-1982. However, when the said petition came up for hearing on 1-12-1982, the respondent-wife was absent and hence an ex parte decree for divorce was passed in favour of the petitioner-husband against respondent-wife. The petitioner-husband waited for nearly two months thereafter. On 5-2-1983 he contracted a re-marriage with a second spouse who, it is alleged, resides at Banglore. The marriage also is alleged to have taken place at Banglore.

(3.) On 10-2-1983, the respondent wife took out a Notice of Motion for setting aside the ex parte decree. Evidently the application for setting aside the ex parte decree, if at all one could be filed, only could be filed within 30 days from 1-2-1982, assuming that the provisions of Article 123 of the Limitation Act applied; hence there was a manifest delay in filing the said application. However, there was even further delay; the Notice of Motion was served upon the petitioner- husband as late a son 17-9-1983.