SHYAMABAI Vs. RADHAKISAN

JUDGEMENT

(1.) THE appellant is hereby assailing the correctness, propriety and legality of the order which has been passed by 3rd Addl. District Judge, Shajapur in the matter of Matrimonial Case No. 9a/92 dated 7. 5. 1994 by which he rejected the application of the appellant for setting aside the decree which was passed against her ex parte, granting decree of restitution of conjugal rights in favour of the respondent.

(2.) MR. Z. A. Khan, Counsel appearing for the appellant pointed out that the learned trial Judge was very much impressed by the discrepancy between the evidence of the appellant Shyamabai and her mother Gangabai in respect of the period for which Shyamabai was admitted in the hospital for ailment of tumor of the abdomen of Shyamabai. If the judgment passed by Trial Court dismissing the application for restoration filed by Shyamabai in which the respondent was ex parte, is examined, it itself shows that the learned Judge has accepted that for some period Shyamabai was admitted in the hospital. He has accepted that there was explainable grounds for her absence on 29. 3. 1993 but rejected her explanation for her absence on 28. 4. 1993 and 5. 5. 1993. Learned trial Judge committed the error in not noticing that a village woman was admitted for ailment of tumor in her abdomen in the hospital, may be having some trouble in respect of ailment thereafter also. That may be the ground, keeping her absence on 28. 4. 1993 and 5. 5. 1993. There is bound to be a variation in the evidence of two village women in respect of the particulars. When the rustic villagers are giving evidence in the Court there may be discrepancy on fringes in respect of period of admission in the hospital. But once the fact that Shyamabai was admitted in the hospital for such ailment stands acceptable, there is no reason to discard the reasons given by her in respect of her absence on 28. 4. 1993 and 5. 5. 1993. It is pertinent to note that these two dates are in close proximity of the date which has been accepted by the Court i. e. 29. 3. 1993. In dealing with matrimonial matters the Courts should adopt the broader approach while dealing with explanations given by the parties explaining their absence in the Courts. While dealing with the application for setting aside ex parte decree passed in matrimonial cases, the Courts should not give too much importance to small variations of details.

(3.) THUS, in the circumstances and discussion above, the appeal stands allowed. The decree which has been passed against the appellant Shyamabai by 3rd Addl. District Judge, Shajapur in Matrimonial Case No. 9-A/92-II, M. A. stands hereby set aside. It stands restored at the same serial number. The Trial Court is hereby directed to decide it after issuing the notice to respondent Radhakisan, on merits in accordance with law. No order as to costs. The appellant Shyamabai to remain present before Trial Court on 22. 1. 1999 during working hours.