The importance of personal service and the knowledge of the respondent in divorce proceedings, and the impact of remarriage on the application under Order IX, Rule 13.

( 1 ) BY the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 3. 2. 2006 passed by learned Principal Judge, Family court, Dehradun in Misc. Case No. 136 of 2005 Smt. Man Mohini Deep v. Dr. Amar deep by which application under Order IX, rule 13 of the C. P. C. has been allowed on payment of Rs. 250/- as cost. The ex parte decree dated 31st March, 2001 passed in Original suit No. 403 of 2002 Amar Deep v. Smt. Man Mohini Deep has been set aside and original Suit No. 403 of 2000 has been restored to its original number.

( 2 ) BRIEFLY stated, the petitioner was married with respondent No. 2 on 4th April, 1981 at Dehradun in accordance with Special Marriage act, 1954. Thereafter, the respondent no. 2 came to Fatehgarh, District Farrukhabad u. P. in the parental house of the petitioner after the marriage. However petition being No. 403 of 2000 under Section 27 of the Special marriage Act was filed by the petitioner before the learned Civil Judge, Farrukhabad.

( 3 ) ACCORDING to the case of the petitioner, notices were sent to the respondent No. 2 by the Court and thereafter on 17th January, 2001 a publication was made in Dainik Aaj published from Kanpur. The case of the petitioner is that in spite of the knowledge by the respondent No. 2, she did not appear in the court and on 31st March, 2001, Civil Judge (Senior Division) Farrukhabad passed the order granting the decree for divorce. On 25th june, 2002, maintenance proceedings being case No. 511 of 2002 under Section 125 of cr. P. C. was filed by Km. Ankita, through her mother i. e. respondent No. 2 legal guardian for the maintenance of her daughter to the extent of Rs. 9000/- per month. The objections were filed by the petitioner.

( 4 ) HOWEVER, during the pendency of Case no. 511 of 2002 filed under Section 125 of cr. P. C. , the respondent No. 2 filed a Misc. Case no. 935 of 2002 under Order IX, Rule 13 of c. P. C. for setting aside the judgment and decree dated 31. 3. 2001. Along with the application, he has also filed the application under section 5 of the Indian Limitation Act stating therein that the deponent i. e. Smt. Man Mohini was not aware of the proceeding in Suit No. 403 of 2000 and she came to know on 16th september, 2002, when she received the copy of the petition under section 27 of the Special marriage Act on 3rd October, 2000. She moved an application on 23rd September, 2002 and has prayed for recalling the ex parte order.

( 5 ) THE respondent No. 2 in the meantime also moved an application before the Apex court for transferring the proceedings at dehradun and the Apex Court was pleased to pass the order on 15th October, 2004 to the following effect:-

". . . . the transfer petition is allowed. Misc. Case No. 74/79/2002 in Petition No. 403/2000 titled "man Mohini Deep v. Amar Deep" pending before the Civil judge, Farrukhabad, Uttar Pradesh is directed to be transferred to the Family court at Dehradun, Uttaranchal. The Civil Judge (S. D.), Farrukhabad shall, soon on communication of this order, transfer the record of proceedings in Misc. Case No. 74/79/2002 in petition No. 403/2000 titled 'man mohini Deep v. Amar Deep" to the family Court, Dehradun, Uttaranchal. The parties their respective Counsel are directed to appear before the Family court, Dehradun, Uttaranchal on 6th december, 2004. No order as to costs. "

( 6 ) THE proceedings, therefore, were started at Dehradun on transfer having been allowed at the instance of the respondent No. 2. Parties have exchanged their affidavits in reply to the application filed under Order IX, Rule 13, C. P. C.

( 7 ) PRINCIPAL Judge, Family Court, dehradun on 3rd March, 2006 has allowed the application filed under section 5 of the Indian limitation Act along with the application filed under Order IX, Rule 13, C. P. C. Learned judge has pointed out that from the order sheet of the said file, it appears that no personal service was affected on the applicant i. e. re