The judgment emphasizes the need for vigilance in adjudicating marital status and the relevance of Evidence Act, Section 41, in matrimonial disputes.

( 1 ) THIS is an appeal by the petitioner (petitioner in Misc. Application No. 12 of 1985 on the file of the Principal Civil Judge, Dharwar) against the order dated 25-7-1986 passed by the Civil Judge, Dharwar, in Misc. Application No. 12 of 1985 dismissing the same as not maintainable.

( 2 ) THE parties have been referred to with reference to their position in the trial Court.

( 3 ) THE applicant Iravva is the wife of the deceased Gurupadappa Siddalingappa Angadi. They were married in the year 1948. The applicant was living with her husband but she did not bear any children. Since she did not bear any children, her husband wanted to marry another woman. The applicant did not give her consent to the second marriage. Notwithstanding it, her husband illegally married another woman and brought her to his house and the so-called second wife also deserted him and went away. Thereafter he brought another woman. The applicant's husband thought that the applicant might take some action against him. So by practising fraud on the applicant and the Court, he had obtained an ex parte decree for divorce against the applicant in L. C. No. 32/1967. The applicant was not aware of the said suit at all. The summons was not served on the applicant in the said suit. By practising fraud and by practising misrepresentation, the applicant's husband managed to see that the applicant was some-how or the other reported to be served with summons. The ground made out in the divorce suit was that the applicant was suffering from venereal disease in a communicable form and the said allegation is false. The decree obtained by her husband is not according to law. The applicant was not aware of the said suit or decree at all. Recently at the time of dispute regarding entries to be made in respect of the properties belonging to the applicant's husband, she came to know that her husband had obtained an ex parte decree of divorce. Her husband's brother is now disputing about the entry of the applicant's name in respect of the properties left by her husband. He is also contending that he is the only heir to the husband of the applicant. She came to know about the ex parte decree of divorce just some little time before the present application was filed. Hence she filed the present application under O. 9, R. 13, C. P. C. to set aside the ex parte decree of divorce obtained by her husband in L. C. No. 32/67.

( 4 ) THE opponent who is the brother of the applicant's husband, resisted the petition.

( 5 ) THE trial Court held that the application under O. 9, R. 13, C. P. C. under the circumstances, was not maintainable. Taking this view, it dismissed the petition.

( 6 ) IT is admitted that the applicant was the wife of the deceased Gurupadappa Siddalingappa Angadi. It is also admitted that the present opponent is the brother of the said Gurupadappa Siddalingappa Angadi. It is further admitted that the applicant was married to Gurupadappa in or about 1948 and they lived together since then for a long number of years. It is also undisputed that the present applicant did not bear any children. It is also undisputed that the disputes are now going on between the applicant and her husband's brother-opponent regarding the properties left by the applicant's husband Gurupadappa. Admittedly Gurupadappa has died in 1985 i. e. before the institution of the application under O. 9, R. 13, C. P. C.

( 7 ) NOW the question is whether the application under O. 9, R. 13, C. P. C. to set aside the ex parte decree of divorce, is maintainable.

( 8 ) SECTION 41 of the Evidence Act, reads as :-"a final judgement, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the e