The main legal point established in the judgment is that an ex parte decree cannot be set aside on the ground of irregularity in the service of summons if the defendant had notice of the date of hearing and had sufficient time to appear in the Court. Additionally, the judgment clarified the legality of a second marriage in the absence of an appeal against the decree within the period of limitation.

JUDGMENT :

VIKAS MAHAJAN, J.

1. The present appeal has been filed assailing the order dated 03.02.2006 vide which the Additional District Judge, Delhi has dismissed the application filed by the appellant under Order IX Rule 13 of the Civil Procedure Code, 1908, seeking setting aside of the ex parte judgment and decree of divorce passed between the parties on 14.05.2003 in HMA No. 849/2001.

2. The marriage between the parties was solemnized on 04.05.1998 at Village Maliganj, District Madhepura, Bihar and a girl child was born from the said wedlock on 23.07.1999, who is presently 23 years of age.

3. Disputes and differences arose between the parties which led the respondent-husband to file a divorce petition against the appellant on 27.07.2001 in the Court of District Judge, Saharsa, Bihar.

4. Subsequently, on an application of withdrawal being filed by the respondent husband, the Court at Saharsa returned the Divorce Petition for being filed in the Court of proper jurisdiction.

5. Thereafter, the respondent filed a Divorce Petition in the District Court, Delhi on 15.10.2001 under Section 13(l)(i-a) and (i-b) of the Hindu Marriage Act, 1955 [in short ‘the Act’] premised on the ground of cruelty and desertion. The summons was issued to the appellant-wife but she refused to accept the same. Based on the report of the process server to the effect that the appellant refused to accept the summons, the appellant-wife was proceeded ex parte in the divorce proceedings on 08.04.2003. Eventually, the divorce petition was allowed and an ex parte decree of divorce on the ground of “desertion” was passed in favour of the respondent-husband and against the appellant-wife, on 14.05.2003 by the Additional District Judge, Delhi.

6. After about 18 months, on 25.11.2004 the appellant-wife filed an application under Order IX Rule 13 CPC alleging that the summons issued by the court in the divorce petition was neither tendered to her nor she refused to accept the same. It was pleaded by her that she acquired the knowledge of the ex parte divorce decree dated 14.05.2003 only on 30.08.2004, when the copy of said ex parte divorce decree was filed by the respondent-husband in her maintenance proceedings pending in the Court at Madhepura, Bihar. Additionally, it was pleaded by the appellant-wife that the respondent-husband had earlier filed a divorce case in the Court at Saharsa, which was withdrawn by him for being filed in the Court at Madhepura in Bihar, therefore, the divorce petition could not have been filed before the District Judge, New Delhi.

7. The respondent filed his reply, pleading that the appellant was having knowledge of the Divorce Petition filed by him in Delhi and that he has already re-married to Smt. Sanju Devi, D/o of Sh. Ramji Prasad Bhagat on 24.11.2004 as per Hindu rites and customs.

8. Learned Additional District Judge, Delhi vide impugned order dismissed the application of the appellant-wife under Order IX Rule 13 CPC on the ground that the appellant-wife was aware of the divorce petition pending in the Court at Delhi and that the contention that she had not been duly served and had not refused to accept the notice of the petition, cannot be accepted. To return this finding, the learned Additional District Judge has relied upon the pleadings and the orders passed in other litigations between the parties wherein there is a specific reference to the divorce petition having been filed by the respondent-husband in the Court at Delhi. The learned Additional District Judge also relied upon the cross-examination of the appellant-wife and her father in a petition filed by the appellant-wife seeking maintenance [Misc. Case No. 27/2001] wherein they had admitted about the pendency of the divorce proceedings pending between the parties. The material part of the impugned order reads as under:—

“The entire record thus speaks unequivocally to the effect that the applicant was aware of the divorce petition pending in the Delhi Courts through the antici