NAMITA RATHORE Vs. MUKESH RATHORE

JUDGEMENT

(1.) THIS appeal arises out of an order dated 21 -1 -1998 passed by I Vth Addl. Judge to the Court of District Judge, Jabalpur in MJC No. 65/97, dismissing an application filed by the applicant Smt. Namita Rathore under Order 9 Rule 13 of Code of Civil Procedure for setting aside the ex parte judgment and decree dated 4 -11 -1997.

(2.) RESPONDENT Mukesh Rathore has filed a civil suit under Section 13 of the Hindu Marriage Act, 1956 seeking divorce from his wife Smt. Namita Rathore on the ground that marriage was performed on 22 -2 -1996 at Jabalpur, parties belonged to respective families, no dowry was demanded, an ideal marriage was performed. In the first night itself certain telephone calls were received by the wife, after hearing the call she went away for sometime, another call was received, that was received by the husband, he heard that the wife had physical relationship with the person calling. Telephone calls used to be received continuously. Namita Rathore always tried to receive the telephone calls, however, husband overlooked the conduct for quite sometime. He wanted to be separated, however, final decision was not reached. A letter (Ex.P.2) was also received by the husband. It was sent to his wife. On 9 -6 -1996 wife left the house. Panchayat was convened. Wife did not attend the meeting of Panchayat. Ultimately a child was born on 16 -11 -1997. Child was not born out of wedlock. On 6 -11 -1996 a report was lodged by Namita Rathore against him. He was summoned to the police station and was told by the police not to follow his wife Namita Rathore. The application was filed on 14 -7 -1997.

(3.) AN application under Order 9 Rule 13, Code of Civil Procedure was filed on 4 -12 -1997 within the period of one month by the wife as soon as she came to know of ex parte judgment and decree dated 4 -11 -1997. It was submitted in the application that in collusion with the process server endorsement of refusal was obtained by the husband, she had never refused to accept any summon by the Court, ex parte decree was fraudulently obtained on 4 -11 -1997. The plaintiff by using his influence got signature of the witnesses on the summons, those persons were well acquainted with him. When she came to know of divorce she appointed Shri Sunil Jain as an Advocate who inspected the record on 3 -12 -1997; thereafter the application was preferred on next very date i.e. 4 -12 -1997 for setting aside the ex parte judgment and decree.