CHANDRAKALA Vs. BANSHIDHAR

JUDGEMENT

(1.) This is an appeal against the order passed by the learned District Judge, Jodhpur on Oct. 6, 1982 dismissing an application for setting aside the ex parte decree passed by him on July 18, 1981.

(2.) It is undisputed that a marriage between Banshidhar respondent and Chandrakala appellant was solemnised on June 17, 1979 according to Hindu rites. On Oct. 7, 1980 a petition for divorce was filed by Banshidhar in the Court of the learned District Judge, Jodhpur seeking a divorce on the ground contained in Sec. 13(1) of the Hindu Marriage Act, 1955, namely, that after the solemnisation of the marriage she had voluntary sexual intercourse with a person other than her husband. Notices in respect of this petition were issued to the appellant Chandrakala for Nov. 27, 1980. As the notices were received unnerved, the learned District Judge passed an order on Nov. 28, 1980 directing that notice be issued for her afresh for Jan. 7, 1981 and another set of notices be sent by registered post to her. On Jan. 7, 1981 the Presiding Officer was on leave. Learned counsel for the respondent desired to file process fee for issuance of notice and the case was adjourned to Jan. 12, 1981. It was also mentioned in the order sheet on that day that the notice sent by registered post was returned with the report 'refused'. On January 12, 1981 the learned District Judge held that as the notices sent by registered post to the Ratangarh address of the appellant was returned with the report 'refused' the service was sufficient and so ex parte proceedings be taken against the appellant. After recording ex-parte evidence, the learned District Judge passed an ex-parte decree for divorce on July 18, 1981.

(3.) An application for setting aside the ex-parte decree was filed by the appellant Chandrakala on Nov. 10, 1981 alleging that the summons were not served upon her and that question of refusal of summons sent at her Ratangarh address did not arise as she was at that time at Delhi with her father's sister. The appellant alleged that she came to know about the ex parte decree on Oct. 18, 1981 when she came to Jodhpur with her father and the record of the case was inspected by her counsel on Oct. 19, 1981. An affidavit was filed by the appellant as well as by her father that she remained at Delhi with Shri Bhairav Narain Purohit. Advocate from Nov. 18, 1980 to July 1, 1981. It may be mentioned here that in her affidavit filed along with the application for setting aside the ex parte decree Oct. 18, 1982 was mentioned instead of Nov. 18, 1980 as the date of her going to Delhi. The error in the date was subsequently corrected when the appellant filed another affidavit on May 27, 1981., by way of rebuttal.