KAMLESH ALIAS KAMLA Vs. MUKESH YADAV

JUDGEMENT

(1.) The appeal has been preferred as against the order dated 08.04.2011 passed by the Family Court No.1, Jaipur, rejecting the application under Order 9 Rule 13 of the Code of Civil Procedure.

(2.) Facts, in short, are that respondent/husband Mukesh Yadav filed an application under Sec. 13 of the Hindu Marriage Act for divorce against appellant/wife on the ground of cruelty and as she was siding separately since April, 2002 without any reasonable cause. The husband was beaten up by the wife and he and his family members were insulted and abused. It was the usual act of the wife to commit the aforesaid acts. The wife was residing separately with effect from April. 2002, whereas marriage was performed on 27.02.2001. The case was presented before the Family Court on 09.09.2009, on which date the Court ordered to issue process. On next date i.e. 09.12.2009, notice was not received back, as such, the Court ordered issuance of fresh notice and fixed the next date as 10.03.2010. On 10.03.2010, the Court has drawn the order- sheet that service has been effected by affixture, which was considered to he sufficient and fixed the next date as 28.04.2010. On 28.04.2010, the Court recorded that since service has already been effected and wife was not present, as such conciliation was not possible and next date fixed was 05.06.20 10. On this date, evidence was recorded ex parte and decree of divorce has been passed on 05.06.2010 itself. An application under Order 9 Rule 13 of the Code of Civil Procedure was filed by the wife on 12.07 2010 alleging that no service of notice was effected; she came to know, for the first time, about ex parte decree of divorce on 04.07.2010 from her sister Santra, wife of brother of her husband when she was told that divorce has been obtained ex parte. On that, when sister Santra had informed the factum of ex parte. On that, when sister Santra had informed the factum of ex panic decree telephonically; certified copy was applied for; simpliciter, in undue haste just after five dates, decree has been obtained ex parse; there was no service much less service was allegedly effected by way of affixture: she never refused to accept the notice, in fact, she was residing in the village in question itself and service was never declined: notice was also not published in the news paper: no intimation of registered notice was tendered; registered notice was also not refused.

(3.) The application was contested by the husband contending that service was effected, as there was evasion on the part of wife to accept the notice; service was made by affixture; there was no reason to set aside the ex parte decree. The Family Court has dismissed the application filed under Order 9 Rule 13 of the Code of Civil Procedure. Aggrieved thereby, the appeal has been preferred.