S.K. Dubey, J. -- 1. This is an appeal under Clause 10 of the Letters Patent by the appellant/defendant, the wife, against the judgment and decree dated 27.11.1984, passed by a learned Single Judge of this Court in First Appeal No. 29 of 1984 (decision reported in AIR 1986 MP 138), preferred against ex parte judgment and decree for judicial separation passed under section 13-A of the Hindu Marriage Act, 1955, for short, the 'Act' by the District Judge, Gwalior, on 15.9.1981.

2. Material facts giving rise to this appeal are these. Respondent was married to appellant according to Hindu rites in November, 1976, at Morar, Gwalior. From the wedlock, a son Jitendra Kumar and a daughter, Kumari Chandni, aged 3 years and 1 years respectively, on the date of institution of the suit, were begotten to them. The respondent claimed dissolution of marriage by a decree of divorce under section 13 (1) (i-a) of treating the husband with cruelty as the appellant used to tease him by making allegations and aspersions against the husband of his illicit relationship with his sister-in-law (brother's wife). It is also averred that applicant used to make similar false allegations and used to apprehend that she will be killed by him. Husband alleged that conduct and behaviour of the wife was cruel since after the solemnization of the marriage; so much so that she left her matrimonial home in July 1979 without any cause and thereafter, did not turn up.

3. A notice of the said petition was issued which was received unserved. Thereafter, fresh summons was sent by registered post without enclosing therewith a copy of the plaint, giving the first date of hearing as 21.7.1981. The notice was received back with a postal endorsement dated 20.5.1981, "Refused to take". On 21.7.1981, the Presiding Officer was on leave. Hence, the Reader of the Court fixed the next date as 10.8.1981 to place the case before the Presiding Officer. On 10.8.1981, the District Judge, after perusing the endorsement of refusal and considering the fact that the appellant/defendant did not appear on 21.7.1981 and also on 10.8.1981, ordered the case to proceed ex parte. On the next date of hearing, the respondent examined himself and gave a statement of nine lines, without stating any particulars of cruelty except that the appellant used to make a false aspersion of his illicit relationship with his brother's wife and, therefore, his mind used to remain disturbed. The respondent also stated that his wife has filed an application under section 125 of the Code of Criminal Procedure. A certified copy of the order dated 20.8.1981 (Ex. P/1), passed by the Additional Chief Judicial Magistrate, Gwalior, of those proceedings is on record wherein, in para 7, the defence of making aspersion of illicit relationship by the wife against the husband with his brother's wife and cruelty was not found proved. However, the application was dismissed as the learned Magistrate found that the wife with her children left her matrimonial home at her own accord. The District Judge, on appreciation of evidence, passed an ex parte decree under section 13-A of Judicial separation instead of decree for dissolution of marriage by a decree of divorce under section 13 (1) (ia) of the Act.

4. Having come to know that an ex parte decree of judicial separation has been passed, the appellant/wife preferred an appeal, the learned Single Judge, placing reliance on two Division Bench decisions of this Court in Ramlal Chaurasia and others v. Rewa Coal Fields, Ltd., Calcutta (1966 MPLJ 507) and Gwalior Municipality v. Motilal (1977 MPLJ 562 = AIR 1977 MP 182), dismissed the appeal holding that when a party chooses to file an appeal against an ex parte decree, the decree can only be challenged on merits and it cannot be set aside on the ground that there was sufficient cause for his non-appearance. Hence, this appeal under Clause 10 of the Letters Patent.

5. Shri Ramji Sharma, learned counsel for the appellant and Shri N.K. M