ALPANA DAS Vs. PARESH CHANDRA DAS

JUDGEMENT

(1.) This application is at the instance of the respondent and is directed against the Order No.35 dated January 14, 2011 passed by the learned Additional District Judge, 7 th Court, Alipore thereby rejecting an application under Section 5 of the Limitation Act as well as an application under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter shall be called as 'C.P.C.') on merits arising out of the Matrimonial Suit No.25 of 2003 filed by the plaintiff / opposite party herein.

(2.) The plaintiff / opposite party herein instituted a matrimonial suit being Matrimonial Suit No.1064 of 2002 under Section 13(1)(ia) of the Hindu Marriage Act and the said suit was pending before the learned Additional District Judge, 7 th Court, Alipore (subsequently re-numbered as Matrimonial Suit No.25 of 2003). The said suit was decreed ex parte on June 23, 2003 without any service of summons upon the wife/respondent/petitioner herein but by substituted service.

(3.) In June 2002, the husband filed an application under Section 13 B of the Hindu Marriage Act for dissolution of marriage on consent upon procuring signature of the petitioner on false pretext and that application was ultimately dismissed for default for non-appearance of both the parties on May 8, 2002. Since, the petitioner is not living at her in-law's house there was a change of her place of residence and as such, she did not receive any summons of the subsequent suit and so, she had no knowledge of the institution of the suit for divorce. Even when the reconciliation was going on before the LASWEB, Kolkata, the opposite party did not disclose anything, though the suit was then fixed for ex parte hearing. She came to know the fact of ex parte decree only on April 17, 2004 when the State Women's Grievance Cell took an initiation for reconciliation again. Then, the husband disclosed ex parte decree of divorce obtained by him on June 23, 2003. So, as an abundant precaution, she filed an application under Section 5 of the Limitation Act along with an application under Order 9 Rule 13 of the C.P.C. for condonation of delay and vacating the ex parte decree passed against her. Those two applications were rejected by the impugned order. Being aggrieved, this application has been filed.