THOMAS Vs. DIMPLE

JUDGEMENT

(1.) HUSBAND is before this Court impugning the order dated 16.8.2013 passed by the learned Court below whereby the application dated 19/6.2.2013 filed by the respondent wife under Order IX Rule 13 CPC for setting aside the order dated 29.8.2012 proceeding her ex -parte and consequently the judgment and decree dated 2.1.2013, was allowed.

(2.) LEARNED counsel for the petitioner -husband submitted that a divorce petition under Section 10 of the Indian Divorce Act, 1869 was filed by the petitioner husband on 12.6.2012 in which notice was issued to the respondent wife. Efforts were made to serve her. As per the reports of the process server dated 26.6.2012 and 10.8.2012, she refused to accept the notice. Vide order dated 29.8.2012, when the respondent wife did not put in appearance in Court, she was proceeded against ex -parte. Thereafter exparte decree for divorce was passed on 2.1.2013. Immediately thereafter the respondent filed an application under Order IX Rule 13 CPC for setting aside the order dated 29.8.2012 proceeding her ex -parte and the ex -parte divorce decree, which was allowed by the learned Court below without there being any justifiable reason.

(3.) LEARNED counsel for the petitioner submitted that besides the report of refusal to receive the summons, the fact that the respondent was in the knowledge of the proceedings of divorce pending against her is evident from the application dated 14.9.2012 filed by her at Ferozeur under Section 125 Cr.P.C. on behalf of the minor daughter as a natural guardian. In para 8 thereof it was specifically mentioned that divorce petition has been filed by the petitioner against the respondent. Besides this, during proceedings before the Women Cell in the police department, it had come on record that divorce petition has been filed by the petitioner which was fixed for hearing on 29.8.2012. It is so mentioned in the enquiry report dated 13.8.2012. Once the fact of filing of divorce petition was well within the knowledge of the respondent wife, there was no good reason for her non -appearance in Court.