Divorce

JUDGMENT :

Vivek Ruisa, J.

1. Appellant(wife) has filed the present appeal challenging the ex-parte judgment dated 21.04.2007 and order dated 25.08.2007 whereby an application under Order 9 Rule 13 read with section 151 of C.P.C. has been dismissed.

2. The facts of the case in short are as under:-

1. As per admitted facts, the marriage of the appellant(wife) and respondent (Husband) was solemnized on 21.02.2005 under the Hindu customs and rituals at Indore and they have no issue from the aforesaid wedlock.

2. The respondent (Husband) filed a petition under Section 13, 13(1) A of the Hindu Marriage Act seeking dissolution of marriage on the ground of cruelty. According to him after the marriage, the behavior of the appellant(wife) was not cordial with him as well as his family members. She used to walk up at 09-10 AM and created a situation that caused atrocities to his mother. She used to quarrel with his mother and sister on the petty issue. She was in habit of threatening and pressuring him to live with her parents otherwise she would commit suicide. She used to threaten for false implications in the criminal case. On 13.04.2005, she wanted to go to her parent’s house, but his mother did not give permission and she misbehaved and she threw a steel glass on him due to which he suffered an injury. On 14.05.2005, she left the house and took jewellery and cash of Rs. 28,000/- for which he made the complaint to the police. Without any reason, she has deserted him on 14.05.2005 and because of the cruelty committed to him, he is entitled to the decree of dissolution of marriage. On these grounds the respondent filed a petition on 09.02.2007 before the Family court and that was registered as HMA No.10/2007. Notices were issued to the appellant(wife) by ordinary as well registered post for an appearance on 19.02.2007. Machkuri submitted a report dated 21.03.2007 that this appellant(wife) has received the notice and signed the acknowledgement. Notice was treated to be served on 20.04.2007, since she did not appear, therefore, she was proceeded ex-parte. On 16.04.2007, the respondent(Husband) examined himself and closed the evidence. On 25.07.2007, the Court has passed ex-parte judgment and decree of divorce.

3. According to the appellant(wife), after the marriage on 21.01.2005, she lived 22-25 days in the house of the sister of the respondent(Husband), thereafter, one and half month in the house of in-laws and thereafter without any reason, was deserted by husband and since then she is living with his father. She approached the Pariwar Paramarsh Kendra from where notices were issued to the respondent (Husband) for appearance, but he did not appear. On 10.05.2007, his mother appeared thereafter on 21.05.2007, the respondent (Husband) appeared and produced the ex-parte judgment and decree. Then she came to know that the ex-parte decree has been obtained by fraud.

4. The appellant (wife) immediately approached the Family Court by filing an application under Order 9 Rule 13 read with section 151 of C.P.C. on 29.05.2007 alongwith an application under section 5 of Limitation Act. Notices were issued and the respondent(Husband) who appeared and filed the reply to the application for condonation of delay and application for stay. In the reply, he has disclosed that after the expiry of the limitation of filing of the appeal, he has performed the second marriage on 25.05.2007, hence, the applications be dismissed. Along with the reply he has filed photocopy of photographs of marriage and marriage card in which the name of the second wife is mentioned as Reshma Patel D/o. Mr. Indrajeet Bhai Patel & Smt. Kalapna Ben Patel.

5. The learned Family court vide order dated 25.08.2007 has dismissed an application under Order 9 Rule 13 read with section 151 of C.P.C. as not maintainable, hence, this appeal before this Court.

6. During pendency of this appeal, the respondent(Husband) has failed to deposit the maintenance amount. Mediation has also failed on 15.03.