IMPORTANT POINT
Ex-parte decree cannot be set aside for mere asking when summons were duly served on correct address.

JUDGMENT

The instant misc. appeal has been preferred by the appellant Dulari Devi for assailing the order dated 19.2.2020 passed by the learned Judge, Family Court, Churu in Misc. Case No. 131/2018, whereby the application preferred by the appellant under Order 9 Rule 13 read with Section 151 C.P.C. was dismissed.

2. We have heard and considered the submissions advanced by the counsel representing the appellant and have gone through the impugned order.

3. The respondent filed an application under Section 13 of the Hindu Marriage Act on 4.4.2018. Notice of the application was served on the appellant, who failed to appear despite service of notice, whereupon the learned Family Court proceeded to accept the application preferred by the respondent husband and passed an ex-parte decree dated 17.7.2018 directing dissolution of marriage of the appellant and the respondent. The appellant filed the application under Order 9 Rule 13 read with Section 151 C.P.C. alleging that as a matter of fact, the notice of the application was never served on her. She was made to sign the summon by keeping her in dark. The respondent fraudulently got her to sign an agreement dated 28.2.2018. The appellant went back to matrimonial home at Churu on 14.9.2018. She was not allowed to enter and was given the shocking information regarding the decree of divorce. Immediately on receiving information regarding the fraudulently procured divorce decree, the appellant moved the application under Order 9 Rule 13 read with Section 151 C.P.C. for setting aside of the divorce decree, which has been rejected by the impugned order.

4. Shri Om Rajpurohit, learned counsel for the appellant urges that the rejection of the appellant’s application for setting aside of the ex-parte decree is absolutely unjustified. The Family court failed to consider the facts in the correct perspective. As a matter of fact, summons of the divorce application were not properly served on the appellant and she was made to sign the same by keeping her in dark. On these grounds, Shri Om Rajpurohit counsel representing the appellant implored the Court to admit the appeal.

5. On a perusal of the impugned order, it becomes clear that the summons of the divorce application were sent to the correct address of the appellant. The appellant not only received the summons but also filed reply under her own thumb impressions. An agreement dated 28.2.2018 bearing the photographs of the appellant was executed between the parties. The appellant was residing at her father’s house in Delhi, where the summons of the application under Section 13A of the Hindu Marriage Act were sent by registered AD Post. Thus, the fact regarding the appellant having received the summons of the divorce proceedings is well established and the objection to the contrary taken by the appellant in the application under Order 9 Rule 13 C.P.C. and in this appeal, is nothing but an afterthought. In the reply filed by the appellant, the prayer for divorce was not contested. A perusal of the impugned order dated 19.2.2020 reveals that after grant of the ex-parte decree of divorce, the respondent has remarried and a child has been born from the wedlock. An agreement dated 28.2.2018 was also executed for the purpose of divorce by mutual consent which bears the thumb impression of the appellant and was witnessed by her brother Shri Pritam Singh, sister-in-law Smt. Minaxi and sister Rani Devi.

6. In view of the above facts, we are of the firm opinion that the plea put forth by the appellant in the application under Order 9 Rule 13 C.P.C. seeking setting aside of the ex-parte proceedings of divorce application is totally cooked up and unbelievable. The appellant consciously signed the agreement dated 28.2.2018 for divorce by mutual consent whereafter, the notices of the divorce application were served on the appellant. The reply which was filed was one of concession to grant a decree of divorce. As such, the appellant cannot now be permitted to