SUNITA Vs. ASHWANI KUMAR

JUDGEMENT

(1.) THIS is an appeal against the order dated 25th January, 2013 passed by the District Judge, Narnaul granting an ex parte decree of divorce to the respondent -husband in a petition under S.13 of the Hindu Marriage Act, 1955. The facts are that the respondent filed a petition under S.13 of the Act for dissolution of marriage solemnized between the appellant and the respondent. When the petition came up for hearing before the learned Additional District Judge, Narnaul notice of the petition was issued to the respondent for 13th January, 2010 including through dasti summons, if desired. On 13th January, 2010 the learned Additional District Judge, Narnaul proceeded ex parte against the respondent, the appellant before this Court by passing the following order: -

(2.) IT is the case of the appellant -wife that the grant of ex parte decree of divorce dissolving the marriage between the parties came to her knowledge on 23rd February, 2010 when she received a telephonic call inquiring about the matrimonial status of the respondent and whether divorce had been granted to the parties with mutual consent. On getting to know of this turn of events, the appellant moved an application under Order 9 Rule 13 CPC for setting aside the judgment and decree dated 19th January, 2010. It was pleaded that the appellant was never served nor had she ever refused to receive summons from Court from any process server and thus the report of refusal had been prepared by the respondent party in connivance with the process server and the Nazar stationed at Behrod, in the State of Rajasthan. In response to the application, the husband pleaded that summons for service of the appellant wife were taken dasti by one Naveen Kumar, Advocate who took them by hand to Behrod and entrusted the same to the process serving agency at the Civil Court at Behrod.

(3.) RAJESH Kumar process server appeared as respondent witness No.1 before the trial Court. He was not able to depose that he had served summons which were refused by the appellant in terms of the procedure laid down under Order 5 Rule 17 of the Code and of the legal requirements of satisfactory proof of service set down in the High Court Rules and Orders issued by this Court. The so -called process server did not bother to get identification of the appellant ascertained by associating any respectable member of the village namely Panch, Sarpanch, Lambardar or Chowkidar of the village in Rajasthan. Not even a neighbour of the appellant was associated while recording refusal of the acceptance of summons to prove that the respondent -appellant was duly served of the proceedings at Narnaul the State of Haryana. To make matters worse, the report Ex.RW1/B does not record the date when the service was allegedly refused and, therefore, the evidence of RW1 Rajesh Kumar is untrustworthy and deserves not to be relied upon.