Navin Sinha & Vikash Jain, J.J.

We have heard counsel for the Appellant and the Respondent no.1.

2. The present Appeal arises from judgment and order dated 5.1.2011 passed by the Principal Judge, Family Court, Vaishali at Hajipur in Miscellaneous case no. 1 of 2000. The impugned order, rejects the application dated 18. 7.2000 of the Appellant filed under Order 9 Rule 13 of the Code of Civil Procedure for recalling the ex-parte decree of divorce dated 18.8.1999 granted to Respondent no.1

3. The parties were married approximately in the year 1983. The Appellant is alleged to have been driven out of the Matrimonial home in April 2000. Four children are stated to have been born from the wedlock. Respondent no.1 filed O.S. no. 11 of 1998 before the Principal Judge for divorce under Section 13 of the Hindu Marriage Act. The Appellant is alleged not to have entered appearance despite knowledge of the institution and pendency of the Suit and also service of notice upon her inter alia through paper publication.

4. The Principal Judge held that there was a presumption for delivery of a registered notice and also that summons had been served as reported by the process server. Service by publication in the in the Hindi daily “Aaj” was also done. The application under Order 9 Rule 13 was filed belatedly. On her own admission the Appellant was aware of the institution and pendency of the suit but did not enter appearance for no justifiable reason to protect her own interest.

5. Learned counsel for the Appellant submitted that she is an illiterate lady. It was the primary obligation of the Court to ensure valid service of notice upon her to the satisfaction of the Court. This was mandatory as attempted reconciliation was a statutory compulsion before divorce could be granted under the Hindu Marriage Act. The lack of proper service of notice violates this statutory requirement and the consequential right of the Appellant to the same. Once the Court, on materials to its satisfaction, had recorded for a valid service of notice and the Appellant did not appear thereafter, issues would have been materially different. There has been no delay in filing of the application under Order 9 Rule 13 within 11 months. It is not only the ex-parte decree with which he is aggrieved, it also sullies her reputation and image as a woman alleging unchastity as a married woman and wife of Respondent no.1.

6. Learned counsel for Respondent no.1 submitted that there is a presumption with regard to service of a registered notice. The process server had submitted a report that the Appellant was not at home and the notice had been pasted on the door. Once the Appellant admits in her evidence knowledge of the institution and pendency of the divorce suit, she had more than adequate time till its disposal on 18. 8. 1999 to enter appearance. If she was negligent for protection of her own interest, despite availability of sufficient time, the Court may not interfere with the impugned order as no sufficient cause can be stated to have been demonstrated. It was lastly submitted that an application filed by the appellant under section 125 Cr.P C on 10.5.2002 had been dismissed on 14. 2. 2011 relying on the ex- parte decree coupled with the deposition of the elder daughter of the Appellant alleging unchastity against her. We are informed by the counsel for the Appellant that the order is under challenge in a pending revision application before this court.

7. The passing of an ex-parte decree against a person is a serious matter, more so in a divorce case because of the consequences. The absence of any satisfaction recorded by the Court with regard to valid service of notice upon the Appellant defeats the statutory requirement for attempted conciliation before a decree of divorce is granted. If there has been no valid service of notice, obviously the conciliation cannot be attempted as the party is not present. If after valid service of notice recorded to the satisfactio