SUNAINA DEVI Vs. RAJ NARAYAN SINGH AND ORS.

JUDGEMENT

(1.) WE have heard counsel for the Appellant and the Respondent No. 1. The present Appeal arises from judgment and order dated 5.1.2011 passed by the Principal Judge, Family Court, Vaishali at Hajipur in Miscellaneous Case No. 1 of 2000. The impugned order, rejects the application dated 18.7.2000 of the Appellant filed under Order 9 Rule 13 of the Code of Civil Procedure for recalling the ex -parte decree of divorce dated 18.8.1999 granted to Respondent No. 1

(2.) THE parties were married approximately in the year 1983. The Appellant is alleged to have been driven out of the matrimonial home in April 2000. Four children are stated to have been born from the wedlock. Respondent No. 1 filed O.S. No. 11 of 1998 before the Principal Judge for divorce under Section 13 of the Hindu Marriage Act. The Appellant is alleged not to have entered appearance despite knowledge of the institution and pendency of the suit and also service of notice upon her inter alia through paper publication.

(3.) LEARNED counsel for the Appellant submitted that she is an illiterate lady. It was the primary obligation of the Court to ensure valid service of notice upon her to the satisfaction of the Court. This was mandatory as attempted reconciliation was a statutory compulsion before divorce could be granted under the Hindu Marriage Act. The lack of proper service of notice violates this statutory requirement and the consequential right of the Appellant to the same. Once the Court, on materials to its satisfaction, had recorded for a valid service of notice and the Appellant did not appear thereafter, issues would have been materially different. There has been no delay in filing of the application under Order 9 Rule 13 within 11 months. It is not only the ex -parte decree with which he is aggrieved, it also sullies her reputation and image as a woman alleging unchastity as a married woman and wife of Respondent No. 1.