GURDEV KAUR Vs. KARNAIL SINGH

JUDGEMENT

(1.) The parties were married in February, 1974 and they are alleged to have lived apart for most of the time and there is no child born from their wedlock. On 20-1-1977, the husband filed a petition for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act). In that petition ex parte decree was passed on 27-1-1978. Two years thereafter, the husband filed petition for divorce in which it was pleaded that he obtained the decree for restitution of conjugal rights and in spite of that the wife did not join his company and therefore, sought divorce. When the wife was served with the divorce petition on 11-11-1980, it is urged that at that time she came to know about the ex parte decree of restitution of conjugal right and consequently applied for its copy on 12-11-1980, which was supplied on 27-11-1980, and the decree sheet was obtained or 4-12-1980. The present appeal was filed against the same on 19-12-1980. It has been averred in this appeal that the wife was not served with the petition under section 9 of the Act and all those proceed. inns were taken behind her back without serving her and, therefore, the same cannot be allowed to stand. This is supported by an affidavit of the wife.

(2.) The learned counsel for the husband has vehemently urged that the proper course for the wife was to file an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree or to file a suit that the decree was obtained by fraud. But any of these matters cannot be raised in appeal against the decree because there is no material in support of the same.

(3.) After hearing the learned counsel for the parties, I find considerable force in the argument of the learned counsel for the husband. The moment wife came to know on 11-11-1980 from the divorce petition served on her about the ex parte decree obtained by the husband under section 9 of the Act, she should have immediately filed an application under Order 9, Rule 13 of the Code of Civil Procedure after obtaining the necessary copies instead of filing the appeal in this Court. The learned counsel for the appellant-wife states that, maybe, that was a better course, but since the appeal has been filed in this Court, her application under Order 9, Rule 13 of the Code of Civil Procedure would be considered as barred by time. Since the wife has been prosecuting this appeal in this Court, it will be open to her to claim exclusion of the time spent by her in this Court under section 14 of the Limitation Act for which she will have to file an application before the trial Court along with an application under Order 9, Rule 13 of the Code of Civil Procedure to explain the delay. On the present record, there is no material to come to the conclusion that the wife was not served in the petition filed under section 9 of the Act or that the ex parte decree was obtained by fraud and, therefore, the wife will have to produce evidence in proceedings under Order 9, Rule 13 of the Code of Civil Procedure and it is only thereafter that a decision in this matter can be taken.