Prashant Kumar Mishra, J.

1. Present is an appeal under Section 19(1) of the Family Courts Act, 1984 (for short 'the Act, 1984') to question the legality and validity of order passed by the Family Court rejecting the application of the appellant/wife under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for short 'the CPC') for setting aside the ex parte decree of divorce.

2. The parties were married at Bhilai on 14-2-2009. On account of dispute between them the appellant started residing separately at Bhilai only, on and from 19-10-2009. The respondent/husband moved an application under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act, 1955') on 16-8-2011 for grant of decree of divorce on the ground of cruelty as well as desertion. The suit was decreed ex parte on 7-4-2012.

3. On 18-4-2016 the appellant moved an application before the Mahila Thana, Durg, alleging commission of cruelty by the respondent and his relatives. On being noticed by the Mahila Thana, Durg, one Rajendra Prasad Singh, brother of second wife of the respondent, appeared on behalf of the husband before the police station and shown to the appellant a copy of the ex parte decree of divorce. The appellant, thereafter, applied for certified copy of the ex parte order on 12-9-2016 and received copy of the same on 21-9-2016 and thereafter, the application under Order 9 Rule 13 of the CPC was moved on 22-9-2016.

4. In the application under Order 9 Rule 13 of the CPC the appellant averred that from the year 2009 till 2014-15 she was residing at her father's house at Bhilai as shown in the application and that she has never received the notice of the proceedings under Section 13 of the Act, 1955 initiated by the respondent. It was specifically mentioned that the notice was never sent to the address where they were married on 14-2-2009, or to her present address.

5. The respondent/husband contested the application on the ground that notice was issued to the appellant at her address at 40/7 Radhika Nagar, Supela, Bhilai, which remained unserved with an endorsement that the appellant has left the house more than a year back, therefore, the notice was published in the newspapers at Bhiali & Bilaspur (Raigarh) and the appellant remained absent, despite notice by publication, therefore, the ex parte decree has rightly been passed by the Court below.

6. We have heard learned counsel for the parties and perused both the records of the trial Court i.e. record of original proceedings as well as the MJC proceedings.

7. The application for grant of divorce was instituted on 16-8-2011. On the said date the Family Court directed issuance of notice and fixed the date for return of notice on 4-11-2011. On the said date the appellant was absent, therefore, it was adjourned for 2-1-2012. When the matter was taken up on 2-1-2012 the Family Court straightaway considered the application under Order 5 Rule 20 of the CPC for substituted service by publication in the newspaper published from Raigarh & Bhilai. The newspapers publication was made in Dainik Bhaskar newspaper Bhilai- Raipur edition on 14-1-2012 and Bilaspur edition on 31-1-2012. In absence of the appellant before the trial Court on the date of hearing i.e. 27-2-2012 she was proceeded ex parte and after recording ex parte evidence, the ex parte decree was passed on 7-4-2012.

8. A reading of the order sheet of the trial Court on 2-1-2012 would reveal that there is no whisper in the said order regarding satisfaction of the trial Court about non-service of the appellant or that she is avoiding service, despite repeated efforts by the Court.

9. Before dealing with the application under Order 5 Rule 20 of the CPC it was the duty of the trial Court to record its satisfaction that the appellant was avoiding the service of notice. The trial Court did not bother to record the statement of Process Server who had taken the summons for service on the appellant at her address shown in the plaint i.e. 40/7 Radhika Nagar