MARIA SINGH Vs. NARENDRA SINGH AND OTHERS

JUDGEMENT

(1.) This appeal has been filed by Mrs. Maria Singh against the order of the learned District judge, jodhpur dated 28 11-1981 by which her application for setting aside an ex-parte decree passed against her under Sec. 13 of the Hindu Marriage Act on 6-7-1976 has been rejected as being barred by time.

(2.) The relevant facts giving rise to this appeal are that Shri Narendra Singh respondent No. 1 had filed an application under Sec. 13 of the Hindu Marriage Act for a decree of divorce against his wife Mrs. Maria Singh on the ground of adultery etc. The notice of this appeal was admittedly not personally served upon the appellant and was published in a local paper 'Jangan', although at the relevant time the petitioner was not in India. The parties are residents of Udaipur. The application under Sec. 13 of the Hindu Marriage Act was filed at jodhpur and, therefore, the appellant did not have knowledge of this decree till 15-10-78 when her counsel Shri Keshri Singh Hiran who was engaged by her in some criminal matter told him that it appeared that some application for divorce may have been filed against her and a decree may have been passed by a Court of Jodhpur. On that Smt. Maria Singh came to jodhpur on 2-11-78, as she was busy in the criminal cases in October; made enquiries, also inspected the file and obtained copies of the relevant documents and it was on 4-11-78 that she came to know that the above decree for divorce has been passed against her. Thereupon she filed the present application for setting aside the ex-parte decree on 7-11-78. The respondent contested the application and alleged that the appellant had knowledge of this decree from the very beginning. As a matter of facts she had left India only in order to evade service of notice of the application under Sec. 13 of the Hindu Marriage Act and after her return from England and USA. She had positively come to know of this decree through some common friends and relations. It was further pointed out that a criminal case under Sec. 454 and 427 I.P.C. had been instituted against the appellant and the copy of the challan was handed over to her on 20-9-78. Along- with other papers filed with the challan, a copy of the decree of divorce dated 6-7-76 had also been supplied to the appellant and from that she definitely came to know of that decree of 20-9-78 but she did not take any steps to get that decree set aside within time. After taking the evidence of the parties and hearing them the learned Dist. Judge found that as a matter of fact the notice of the application under Sec. 13 of Hindu Marriage Act was never served upon the appellant and that the publication of the notice in Jangan' was also improperly obtained. He, however, found that the appeal-land had knowledge of the decree at least on 20-9-78 or immediately thereafter but she did not file the application within the prescribed time and on this ground he rejected the application hence this appeal.

(3.) I have heard learned counsel for the parties and have gone through the record. There is no dispute before me that the notice of the application under Sec. 13 of the Hindu Marriage Act had not been properly served upon the appellant. That being so admittedly the limitation for filing an application for setting aside ex-parte decree would start from the date of knowledge of the decree. The only question which arises for consideration in this appeal is as to on what date the appellant had got the knowledge of the decree ? If she had got the knowledge of the decree only within 30 days of the filing of the application, application would be within limitation but if the application has been filed after more 30 days from the date of know- ledge, it would admittedly be barred by time.