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Judgment
AR. Lakshmanan, J.—Wife is the petitioner in the main O.P. She filed the petition for divorce u/s 10 of the Indian Divorce Act. According
to the petitioner, the respondent is living in adultery and had also treated her cruelly. The petition so filed by the wife was originally dismissed for
default for nonpayment of batta. The petitioner filed I.A. No. 132 of 1990 to set aside the order of dismissal of the petition for non-payment of
batta and it was ordered on 2.7.1991. But the respondent/husband did not receive the summons after the restoration of the main O.P. However,
the trial court proceeded with the enquiry and granted a decree for divorce as prayed for on 28.10.1991 and forwarded the papers-to this Court
for confirmation.
On coming to know of the ex parte decree by the court below, the husband/respondent herein filed a petition to condone the delay of 196 days
in filing the petition for setting aside the ex parte decree and also another petition to set aside the ex parte decree. The Court below returned those
petitions on the ground that the matter is pending before this Court for confirmation, and as such, those petitions cannot be entertained by it.
We are of the view that the order of the court below cannot be sustained. Admittedly, the respondent was not served with notice after the O.P.
was restored to file. We are of the opinion that an opportunity ought to have been given to the respondent to contest the proceedings. In that view
of the matter, we set aside the decree granted by the learned District Judge. The matter is remanded to the Court below and the Court below is
directed to give notice to the respondent herein and then proceed with the matter afresh on merits and deal with the same in accordance with law.
We order accordingly.