Non-service of notice and obtaining ex parte decree through false means can lead to the setting aside of the decree within the limitation period.

JUDGMENT

Sudesh Bansal, J. - Petitioner-husband has preferred this revision petition under Section 115 of the Code of Civil Procedure, assailing the Order dated 12.01.2021 passed in Civil Misc. Application No.36/2019 by the Court of Civil Judge & Judicial Magistrate, Gangapur City, whereby and whereunder on the application of respondent-wife filed under Order 9 Rule 13 CPC, an ex parte decree dated 15.02.2019 for dissolution of marriage dated 11.03.2012 passed in Civil Suit No.106/2018 titled Mukraj Vs. Geeta Bai has been quashed and consequently, ex parte proceedings in the divorce petition against the respondent-wife have been set aside.

2. Heard counsel for both parties, perused the impugned order and material placed on record.

3. From the record, it is undisputed fact that parties belong to Meena Caste and their marriage was solemnized according to the rights and customs of their cast on 11.03.2012 at Village Barh Ramser. Out of this wedlock, one girl child born, who is minor and presently residing with respondent-wife. It is also not in dispute that petitioner-husband is Junior Engineer and presently posted in JVVNL, District Karauli.

4. Petitioner-husband filed a civil suit on 09.07.2018 seeking dissolution of their marriage dated 11.03.2012. In the suit, address of respondent-wife was indicated of Todabhim, Karauli and notice was issued on the said address. As per report of notice, it was reported to be refused and one witness Ramgopal verified the report of refusal. On such report, the trial court proceeded ex parte proceedings in the divorce petition vide order dated 12.10.2018 and decreed the suit vide judgment and decree dated 15.02.2019, declaring the marriage of parties as dissolved.

5. Respondent-wife moved an application under Order 9 Rule 13 CPC along with application under Section 5 of the Limitation act on 08.05.2019, stating inter alia that she was residing at Nasiyan Colony, Gangapur City, Sawai Madhopur with her mother-in-law it means mother of petitioner-husband and came to know about the ex parte decree of divorce only on 05.05.2019, when her husband disclosed such decree to her. This application was opposed by the petitioner-husband.

6. In the proceedings under Order 9 Rule 13 CPC, witness Ramgopal, who was the witness on the report of process server sworn in and submits his affidavit that he never signed on the report. Respondent-wife also produced her statements and other evidence that at the time of filing of divorce petition and at the time of service of notice, she was residing at Nasiyan Colony, Gangapur City, Sawai Madhopur and not at Todabhim, Karauli. No sufficient evidence in rebuttal was produced by the petitioner to prove the address of defendant as correct and the refusal report on notices as correct.

7. Learned trial court, on appreciation of the material available on record, recorded a fact finding that it is established on record that wife was residing in Nasiyan Colony, Gangapur city, Sawai Madhopur with the mother of petitioner and the refusal report on the notice is false. The trial court placed reliance on the affidavit of Ramgopal, as the same was not rebutted by the petitioner. The trial court clearly recorded a fact finding that the husband has obtained false report on the notices, in order to get ex parte decree of divorce. The trial court observed that there is no reason to believe that if the wife would have been aware about the civil suit for dissolution of marriage, she would not have contested the same or would not have applied for setting aside the ex parte decree dated 15.02.2019 within time. Considering over all facts and circumstances, the trial court believed that the wife came to know about the ex parte decree of divorce only on 05.05.2019 and therefore, her application was treated within limitation and accordingly, the trial court allowed the application and ex parte judgment and decree dated 15.02.2019 for dissolution of marriage, was quashed and set aside vide Order dated