Smt. Suresh Devi vs Babu Ram

J.V. Gupta, J.—This appeal has been filed on behalf of the wife-Appellant whose application for setting aside the ex parte decree of nullity passed u/s 12 of the Hindu Marriage Act, was dismissed.

The husband-Respondent filed a petition u/s 12 of the Hindu Marriage Act, against his wife on 31.10.1985 for annulment of the marriage on the ground that the marriage could not be consummated because of the impotency of the wife. She was summoned for 19.11.1985. It was reported on the summons that she was reported to be out of station. However, on the registered cover and the acknowledgement due, the postman tried several times but ultimately it was reported on 11.11.1985 that the addressee had refused to take the registered cover On this report alone, the learned Additional District Judge, ordered to proceed ex-parte against the wife vide order dated 19.11.1985. On the very day ex-parte evidence was recorded and an ex-parte decree was passed on 22.11.1985 An application to set aside the ex-parte decree was made on 11.3.1986. It was stated therein that she had been away to the house of her maternal grand father since 1.11.1985 and was in village Chaneti and came back from there on 28.11.1985. She further pleaded that she was never presented any registered cover nor there was any occasion for her to refuse the same.

In the reply filed on behalf of the wife these allegations were controverter and the trial Court framed the following issues:-

Whether there are sufficient grounds for setting aside the ex-parte judgment and decree dated 19.11.1985 as alleged? OPA.

Whether the application is within time ? OPR.

Relief.

The learned Additional District Judge came to the conclusion that there was no sufficient ground to set aside the ex-parte decree. It was also held that the application was barred by time. Consequently, the application was dismissed.

The learned Counsel for the Appellant submitted that from the report on the summons it is quite evident that the wife was not available in the village. Even on the envelope sent by registered post, on various dates it was reported that she was not available but on 11.11.1985 the postman made report that she had refused to take delivery According to the learned Counsel the Postman was never produced in the witness box to prove the said report and in these circumstances the ex-parte decree was liable to be set aside. On the other hand, learned Counsel for the husband-Respondent submitted that the wife was proceeded against ex-parte on the basis of the report made by the Postman on the registered envelope and, therefore, it was rightly found that there was no sufficient ground for setting aside the ex-parte decree.

After hearing the learned Counsel for the parties and going through the relevant record, I find force in the contention raised on behalf of the Appellant. Even the learned Additional District Judge, observed that "from the evidence as such 1 would have set aside the ex-parte proceedings against the wife in the context of the atrocities being committed on the women by some of the men because of various reasons in our society. However, in the case in hand though 1 am not deciding the case relating to the dissolution of marriage but there is a definite case that the wife has suffered from a very serious disability which prevents the husband from having a married life at all. In such a situation and circumstance it may be possible that the wife did not want to contest the case otherwise there is hardly any evidence on record which could be believable to say that the wife had gone to her maternal uncle." It appears that the learned Additional District Judge has acted on surmises and conjectures and has taken into consideration merits of the case while deciding the application for setting aside the ex-parte decree. The whole approach is wholly wrong and illegal.

It may be observed that the matrimonial matters are on different footings than the ordinary litigation between the parties The very fact that serious allegations were made by the husband against the wife in the petition u/s 12 of the Hindu Marriage Act, was itself a ground to set aside the ex-parte decree so that the wife may have a chance to controvert the allegations made against her. Moreover, nothing has been brought on record by the husband to prove that the wife had any interest to delay the proceedings or had gained in any manner by allowing the husband to proceed ex-parte against her Moreover, the husband never produced the postman in the witness box to prove his report of refusal.

Thus taking into consideration the facts and circumstances of of the case, this appeal succeeds; the order under appeal is set aside and the application for setting aside the ex-parte decree is allowed with no order as to costs. The parties have been directed to appear before the learned District Judge, Kurukshetra, on 15.12.1957. The petition be now proceeded in accordance with law and disposed of on merits