IMPORTANT POINT
Setting aside ex-parte decree of divorce – For a defendant to succeed in application for setting aside ex-parte decree, he has to satisfy court that summons was not duly served or that he was prevented by any sufficient cause from appearing when suit was called on for hearing.

JUDGMENT

The appellant has challenged order dated 10.02.2020 passed by the learned Principal District Judge, Kathua, whereby his application under Order IX Rule 13 of the Code of Civil Procedure(CPC) for setting aside ex parte judgment and decree dated 31.03.2018 passed by the same court, has been dismissed.

2. It appears that the respondent had filed a petition for dissolution of marriage under section 13 of the Jammu and Kashmir Hindu Marriage Act before the learned trial court. After summons were issued to respondent appellant herein, the same are stated to have been served upon her father on a couple of occasions who assured the Process Server that he will make the appellant/defendant to appear before the court on the date fixed. When the appellant did not appear before the court below on the date fixed, she was proceeded ex parte in terms of order dated 28.10.2017 passed by the learned trial court and the respondent herein was directed to lead evidence in ex parte.

3. The learned trial court after recording the ex parte evidence, passed ex parte judgment and decree dated 31.03.2018 whereby the petition of the respondent was accepted and ex parte decree of divorce under section 13(1)(ii)(v) of the Jammu and Kashmir Hindu Marriage Act was passed in favour of the respondent herein and against the appellant herein.

4. It appears that the appellant herein filed an application under Order IX Rule 13 of the CPC seeking setting aside of ex parte judgment and decree dated 31.03.2018 and along with said application, another application under section 5 of the Limitation Act seeking condonation of delay was also filed by the appellant before the trial court on 13.10.2018.

5. The grounds urged by the appellant before the trial court was that she was never served with the summons and even if it was served upon her father, he did not inform her about the same because the appellant was suffering from mental trauma and depression during the relevant period. According to the appellant, had her father shared information with regard to the filing of the divorce petition with her, she would have lost her life and for this reason, her father did not disclose this information to her. The appellant is stated to have come to know about the ex parte judgment and decree only when the respondent sent a copy to her on her Whatsapp number, but she could not understand the legal repercussions of the said judgment and decree. She had to consult her advocate, which she did on 11.10.2018 whereafter she moved the application for setting aside the ex parte judgment and decree.

6. The respondent herein contested the application filed by the appellant and submitted his objections thereto. In his objections, the respondent contended that the appellant had the knowledge about the pendency of the petition and she had been duly served through her father but she did not choose to appear before the court. It appears that the parties were given option by the learned trial court to lead evidence in support of their respective cases but they did not choose to do so.

7. Learned trial court after hearing the parties dismissed the application of the appellant after holding that she has been properly served with the summons of the suit and as such, there was no ground to set aside the ex parte judgment and decree.

8. The appellant has challenged the impugned order primarily on the ground that the service of the summons has not been effected upon her in terms of Order V Rule 15 of the CPC as the conditions contained therein have not been satisfied. It has been submitted that the respondent knew that the appellant was not residing with her father but was residing at Lakhanpur and in spite of this he gave wrong address of the appellant in the divorce petition so as to obtain an ex parte decree against her.

9. I have heard learned counsel for the parties and perused the record of the case.

10. Before dealing with the grounds raised by the appellant for setting aside the impug