An ex parte divorce decree can be challenged posthumously by the aggrieved spouse, reaffirming the right to contest divorce and the necessity of proper service in accordance with established legal principles.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the order dated 30.12.2014, passed by learned District Judge, Kangra at Dharamshala, District Kangra, H.P., vide which, an application under Order 9 Rule 13 of CPC filed by the respondent (applicant before the learned Trial Court) was allowed and the ex parte decree of divorce passed against her in HMP No. 54-P/III/2004, titled “ Dhani Chand Vs. Kushla Devi ” was set aside.(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that Dhani Chand, husband of the applicant filed a petition for dissolution of marriage, which was registered as HMP No. 54-P/III/2004 titled as “ Dhani Chand Vs. Kushla Devi . The notices were issued to the present applicant. The applicant could not be served for want of the correct address. The husband of the applicant filed an application under Order 5 Rule 20(IA) of CPC for service of the applicant through publication, which was allowed on 01.03.2007. The applicant was ordered to be summoned by way of publication. The notice was duly published in Amar Ujala on 24.03.2007. However, none appeared on 02.04.2007 before the learned Trial Court. Hence, the learned Trial Court proceeded against the applicant ex parte and allowed the divorce petition under Section 13(1)(ia)(ib) of the HINDU MARRIAGE ACT . Dhani Chand died and the applicant applied for a grant of family pension. She was informed that she was not entitled to a family pension as her husband had divorced her. She filed an application under Order 9 Rule 13 of CPC for setting aside the ex parte decree.It was asserted that there was no proper service of the applicant as the address shown in the petition was Village Bharmat, Near Holta Camp, Tehsil Palampur, District Kangra, H.P. whereas. her correct address was Village Kir Chamba, Nagrota Bagwan, P.O. Hatwas, Tehsil & District Kangra, H.P. No summonses were served on her permanent address. The applicant would have defended the divorce proceedings, had she known about them. She came to know about the divorce when she was told by Army a Authorities that she was divorced by her husband. She inspected the record and found that she was proceeded ex parte. Therefore, it was prayed that the application be allowed and the ex parte decree be set aside.

3. The legal representatives filed a reply taking preliminary objections regarding lack of maintainability, respondent no. 2 being minor, the application being barred by limitation and the application having been filed against the dead person. The contents of the application were admitted to the extent that the Court had proceeded ex parte against the applicant on 02.04.2007 and Dhani Chand had expired on 12.08.2008. The applicant was not living with Dhani Chand and she was residing with some other person that is why Dhani Chand had divorced her.Therefore, it was prayed that the application be dismissed.

4. A rejoinder denying the contents of the reply and affirming those of the application was filed.

5. Learned Trial Court framed the following issues on 09.04.2013.

1. Whether the applicant is entitled to the relief claimed, as alleged? OPP

2. Relief.

6. The parties were called upon to produce their evidence and the applicant examined herself (AW-1). Respondent No.2 examined himself (RW-1).

7. Learned Trial Court held that the address of the applicant was mentioned as resident of Village Bharmat, Near Holta, Camp, Tehsil Palampur,