The main legal point established in the judgment is the significance of proper service and knowledge of divorce proceedings in setting aside an ex parte decree.

JUDGMENT

Rekha Mittal, J. - Jaswinder Kaur and Kulbir Singh performed marriage in the year 2003 and out of wed lock, two children were born who are in custody of their mother. Kulbir Singh filed petition under Section 13 of the Hindu Marriage Act, 1955 (in short "the Act") seeking decree of divorce. The proceedings culminated in ex parte judgment and decree dated 4.3.2008 in divorce petition filed on 22.10.2007. She was proceeded against ex parte on the basis of report prepared by process server of the court that she refused to accept summons and one copy of summons was affixed at 'dare abad'.

2. Jaswinder Kaur filed application for setting aside ex parte judgment and decree by invoking Order 9 Rule 13 of the Code of Civil Procedure, 1908 (in short "the Code") raising averments that she was never served in the case. Report of refusal was manipulated by her husband in connivance with the process serving agency. It is further averred that on 19.10.2009, a telephonic message was received by her family that Kulbir Singh had married and some party was going on in his house. The respondent-husband is enjoying benefits of his own wrong who has not bothered about future of minor children. He manipulated the report on summons to get a fraudulent ex parte decree by playing fraud with the court.

3. The respondent filed reply to the application denying the allegations on the basis whereof the appellant sought indulgence of the Court for setting aside ex parte decree dated 4.3.2008. It is averred that decree was passed on 4.3.2008 and marriage with Minakshi Sharma was solemnized on 12.10.2009 which was registered on 14.10.2009. Jaswinder Kaur did not adjust in the matrimonial house. She used to compel the respondent for separate residence. She left company of husband in March 2005 and she was in the habit of filing false applications.

4. The trial court framed issues for determination, read thus:-

1. Whether there are just and sufficient grounds for setting aside the ex parte judgment and decree dated 4.3.2008? OPA

2. Whether the application is within time? OPA

3. Whether the application has become infructuous in view of the preliminary objection No. 2 taken in the reply? OPR

4. Relief

5. The appellant appeared in the witness box and reiterated her story narrated in the application for setting aside ex parte decree. She produced documents, in view of statement of her counsel recorded on 16.11.2010. In rebuttal, the appellant again tendered certain documents in evidence in view of statement of counsel dated 12.5.2011.

6. The trial court, determined issues No. 1 to 3, taken up jointly, against the appellant and resultantly the application was dismissed with costs. Feeling aggrieved, the present appeal has been filed by Jaswinder Kaur.

7. Counsel for the appellant would argue that before filing divorce petition, the respondent filed petition under Section 9 of the Act in which the appellant joined proceedings. As the matter was compromised between the parties, the petition was dismissed as withdrawn vide order dated 16.5.2006. The respondent filed another petition under Section 9 of the Act but the matter was again compromised between the parties and the petition was withdrawn in the Lok Adalat vide order dated 15.9.2007 Ex. PA/4. It is argued with vehemence that if the appellant caused appearance in the aforesaid two petitions, there was no reason for her to remain absent from the proceedings for divorce had she received any summons from the court. It is further argued that it is difficult to accept to reason that a person would shy away from the proceedings pending in a court of law at the risk of suffering ex parte order and thereafter knock at the door of the court to set aside that ex parte order. It is vehemently argued that the appellant never received any notice of divorce petition nor she had knowledge of pendency of divorce petition, therefore, she had been made to suffer a decree of divorce without an opportunity of being heard. It