ANITA KOLI Vs. SHYAMLAL KOLI

JUDGEMENT

(1.) The present appeal has been filed by the appellant-wife, Anita, being aggrieved by the ex parte divorce decree dated 18.07.2009 granted in Civil Misc. Case No.24/2008- Shyamlal Vs. Anita, by the learned District Judge, Sirohi, under Sec. 13 of the Hindu Marriage Act, 1955, in favour of respondent/husband. The appellant has also assailed the order dated 25.04.2011 passed by learned District Judge, Sirohi, in Civil Misc. Case No.141/2009, whereby the application filed by the appellant-wife under Order 9, Rule 13 Code of Civil Procedure for setting aside the ex parte divorce decree was also dismissed. While rejecting the application under Order 9, Rule 13 CPC, the learned court below had given following reasons: - ...[VERNACULAR TEXT OMITTED]...

(2.) Mr. B.L. Bhati, learned counsel for the appellant/wife submitted that the learned court below has grossly erred in upholding the ex parte divorce decree without taking note of the fact that on earlier occasion the application filed by the appellant-wife under Sec. 9 of the H.M. Act, 1955, for restitution of conjugal rights was allowed viz. in Case No.280/2004- Anita Vs. Shyamlal, on 15.01.2008 and, in view of this, the learned court below ought to have at least heard the case on merits and allowed proper opportunity to defend the said divorce application and the divorce petition should have been decided on merits after hearing both the parties. He further submitted that despite the of second marriage contracted by the respondent, the issue relating permanent alimony in favour of appellant and her son of this wedlock, still survives and, therefore, the case deserves to be restored to the learned court below for trial on merits.

(3.) On the other hand, Mr. Bharat Singh, learned counsel for the respondent supported the impugned order and argued that since the summons were properly served on the appellant-wife, and if she chose to remain ex parte before the learned court below, the learned trial court cannot be faulted in passing the ex parte divorce decree and in rejecting the application filed by the appellant under Order 9, Rule 11 CPC.