MAGANTI KRISHNA DURGA Vs. MAGANTI ANIL KUMAR

JUDGEMENT

(1.) SMT . Maganti Krishna Durga, who is no other than the wife of Maganti Anil Kumar, preferred the appeal under Section 28 of the Hindu Marriage Act (for brevity H.M. Act) and under Order XLIII Rule 1(d) of the Code of Civil Procedure (for brevity CPC), impugning the order dated 19.07.2004 dismissing her application filed under Order 9 Rule 13 CPC in I.A. No. 928 of 2003, to set aside the ex -parte divorce decree dated 24.04.2002 in H.M.O.P. No. 86 of 2001 on the file of the Senior Civil Judge, Machilipatnam, obtained by her husband Anilkumar.

(2.) HEARD both sides and perused carefully the material on record including the documents marked for reference, viz., the Exs.C1 -9 from record and the Ex.R1 -6 additional material filed by the appeal respondent -husband in this appeal in CMAMP No. 1647 of 2014, since allowed by order of this Court dated 12.02.2015 in support of his contention of he married again on 20.02.2003 and blessed with child in the second wedlock and in support of their respective rival contentions impugning the lower court's order by the appellant -wife and supporting the order by the respondent -husband with reference to the provisions and propositions placed reliance by both. Now the points for consideration are:

(3.) A . For sake of convenience the parties are being referred as arrayed in the divorce petition as petitioner -husband and respondent -wife. In deciding the appeal lis formulated supra, the factual background shows that: the H.M.O.P. No. 86 of 2001 was filed against the wife under Section 13(1a) and (1b) of the H.M. Act on 03.08.2001 to dissolve their marriage took place on 22.05.1993 according to Hindu rites and caste customs at Musunur village of Krishna district (AP). It is after the O.P. was numbered, the trial Court on 24.08.2001, ordered summons to the respondent -wife returnable by 29.10.2001 through Court Process Server as per Order V Rule 1 CPC and simultaneously through registered post under Order V Rule 19 -A CPC(as was in force). It is important to note that the summons were returned unserved viz.,(i). through the Court Process Server unserved for not residing in the given address & (ii). through registered Post unserved for left without instructions. It is therefrom the Court having felt the need ordered on 29.10.2001 to file batta for fresh summons returnable by 03.12.2001. As batta was paid only on 03.12.2001 with delay condonation petition, same was allowed to issue summons returnable by 31.12.2001. It was as not paid batta properly to issue, on 31.12.2001 the notice batta represented with a petition was allowed and ordered for issuing the summons returnable by 01.02.2002, however, it appears not properly complied with and thereby from 01.02.2002 it was posted to 5.03.2002 with observation notice to respondent batta received, issue summons returnable by 05.03.2002. It was on 05.03.2002, there was an endorsement by the Court clerk on the case docket that the petitioner filed substitute service petition instead of filing notice batta, hence for orders: it is pursuant to the above note put up by the Court clerk, instead of ordering fresh notice on payment of batta, the Court allowed the substitute service application for publication in Janata (paper) of Vijayawada (Edition) returnable by 24.04.2002. It was therefrom the case docket of 24.04.2002 reads that: publication in Janata of Vijayawada filed, respondent was called absent, set ex -parte and P.W.1 is examined. Claim proved. Petition is allowed with costs. Marriage of petitioner with the respondent is dissolved by decree of divorce.