( 1 ) AGGRIEVED by the decree of judicial separation, passed by the District Judge, Gwalior on 15-9-1981, the appellant-wife has preferred this first appeal under S. 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), though originally this appeal was wrongly presented under S. 96 of the Code of Civil Procedure.

( 2 ) THE appellant is the wife and the respondent is the husband. Respondent filed an application in the Court of District Judge, Gwalior, under S. 13 of the Hindu Marriage Act, 1955 for a decree of divorce an the ground of cruelty. The process was issued by the District Judge, by Registered-Post, but the endorsement on the envelope is that the appellant-wife Laxmibai refused to accept it. Hence, as mentioned in para 3 of the impugned judgment, the District Judge proceeded ex parte against the appellant. He recorded the evidence of the respondent - Keshrimal Jain and pronounced his judgment on 15-9-1981. Against this judgment the appellant preferred appeal along with an application for condonation of delay. The delay was condoned vide order dated 18-9-1984 and the appeal was admitted for hearing.

( 3 ) I have heard the learned counsel