THE HON’BLE MR JUSTICE L. NARASIMHA REDDY C.R.P. No.2623 of 2009 ORDER: The petitioner challenges an order dated 22-04-2009, passed by the Court of Principal Senior Civil Judge, Kurnool, in I.A.No.66 of 2008 in M.V.O.P.No.23 of 1998. The marriage between the petitioner and the respondent took place long back, and they were also blessed with a child. However, they fell apart, and started living separately. The petitioner filed O.P.No.685 of 1997 in the Court of District Judge, Kurnool, against the respondent, under Section 13 of the Hindu Marriage Act (for short ‘the Act’). The O.P was subsequently transferred to the Court of Senior Civil Judge, Kurnool, and was re-numbered as O.P.No.93 of 1998. The respondent was set ex parte, and ultimately an ex parte decree was passed on 18-06-1998, granting divorce. The respondent filed I.A.No.66 of 2008 under Order IX Rule 13, read with Section 151 C.P.C., to set aside the ex parte decree dated 18-06-1998. It was pleaded that the respondent did not receive any notice in the O.P., and that she came to know about the decree only in the course of investigation into a complaint submitted by her, alleging that the petitioner committed the crime of bigamy. It was mentioned in the affidavit filed in support of the I.A., that, when the Police went to arrest the petitioner, he has produced a copy of the decree dated 18- 06-1998, and soon thereafter, the I.A. was filed. The petitioner opposed the application, on several grounds. He pleaded that the respondent was served with notice, when the O.P was before the District Court, Kurnool, as well as, after it was transferred to the Court of Senior Civil Judge, but has remained ex parte. He contends that the I.A was filed, ten years after the decree was passed, only with a view to harass the petitioner. Other facts were also pleaded. Through order under revision, the trial Court allowed the I.A., and had set aside the ex parte decree, dated 18-06-1998. The same is challenged in this revision. Sri K. Suresh Reddy, learned counsel for the petitioner, submits that the respondent subjected the petitioner to severe harassment, and left the house, without even caring for a child of tender age. He submits that the effort made by the petitioner to bring the respondent back, by filing the O.P. for restitution of conjugal rights did not fructify. It is also stated that the petitioner contracted the second marriage, after the decree for divorce is granted, and begot child through the second wife, and that the order under revision would have the effect of rendering the marriage illegal, and making the child, illegitimate. Sri M. Achutha Reddy, learned counsel for the respondent, on the other hand, submits that the decree for divorce was obtained by the petitioner by misrepresenting the facts before the trial Court and manipulating the service of notice. He contends that on receiving notice in O.P.No.685 of 1997, the respondent approached the District Court and she was informed that the O.P. is no longer pending in that Court, and that the notices would be served in due course, by the Court, to which, the O.P. was transferred. Learned counsel submits that the respondent did not receive any notices after the O.P was transferred to the Court of Senior Civil Judge, Kurnool, and the ex parte decree passed against her, cannot be sustained in law. Out of the marriage between them, petitioner and the respondent had a son. The relationship appears to have received a set back, when the child was at a tender age. Alleging that the respondent left his company, without any basis, the petitioner filed O.P.No.389 of 1993 in the Court of Senior Civil Judge, Kurnool, under Section 9 of the Act, for restitution of conjugal rights. It is stated that the respondent reported to the trial Court, that she is not interested to join the petitioner. Thereby, the effort made by the petitioner to bring back the respondent did not materialise. After waiting for about five years, the petitioner filed the O.P under Section 13 of the Act, before the Court of District Judge, Kurnool. It was numbered as O.P.No.685 of 1997, and thereafter was transferred to the Court of Senior Civil Judge, Kurnool. An ex parte decree was passed therein, on 18-06-1998. The respondent filed an application under Order IX Rule 13 C.P.C., after lapse of ten years. The petitioner strongly opposed the application. In view of the allegations and counter-allegations, the parties adduced oral evidence. The respondent deposed as PW-1, and the petitioner, as RW-1. It was elicited from the respondent, that she received summons in O.P.No.685 of 1997 on the file of the District Court, Kurnool. She did not enter appearance. It was stated by her that she did not receive notice, after the O.P. was transferred to the Court of Senior Civil Judge. The petitioner pointed out the signature on the copy of notice in the records of O.P.No.23 of 1998. It was suggested to the respondent in the cross-examination that she is called with different names and she writes her name in different fonts. She stated that she does not know as to which class her son is studying, and pleaded ignorance about the present name of the boy. It has also been elicited from her, that she filed an O.P. for maintenance against the petitioner in the year 2008, and that she has withdrawn the same. The trial Court opined that the signature on the acknowledgement, for the summons sent in O.P.No.685 of 1997, on the one hand, and the signature on the summons in O.P.23 of 1998, are different. As far as possible, this Court, or for that matter, any Court, would show indulgence to woman spouses, some times beyond the ordinary norms, to set aside an ex parte decree passed against them, if it is established, at least, prima facie, that they have not received notices. In the instant case, there are several factors, which disentitle the respondent for such an approach. It is not a case, where she was driven away from the matrimonial home. She left the house, at a time when the child, born to the petitioner and the respondent; was at a very tender age. In the ordinary course, a woman would endeavour to get the custody of her child, even if it becomes incompatible for her to live with the husband. She did not take any step in that direction. On the other hand, the effort made by the petitioner to bring back the respondent to the matrimonial home did not fructify. The respondent maintained such a distance with her matrimonial home, that for decades she did not even know as to what the child was doing. In the cross-examination, she stated that she does not know, as to with what name the son is being called. The above mentioned facts gain importance, only to assess the concern, if any, on the part of the respondent, to sustain the matrimony. It is a matter of record that the respondent received summons in O.P.No.685 of 1997. The record discloses that she did not enter appearance. After the matter was transferred to the Court of Senior Civil Judge, Kurnool, fresh summons were sent to the respondent, and the trial Court was satisfied, that the summons were served. The respondent was set ex parte, and an ex parte decree was passed by the year 1998 itself. Any person of ordinary prudence would, at least, make an endeavour to know as to what is happening at her matrimonial home. The respondent pleaded that she was visiting the places of residence of the petitioner, now and then. If that be so, she bound to know these developments. The allegation of the petitioner that the I.A came to be filed ten years after the decree, at the instance of some of his relations, inimical to him; gains credibility. Even where the woman spouse is employed, or is having sufficient income, but is living separately, application is filed for maintenance. In the instant case, the respondent was living separately from the petitioner, for the past more than a decade. She has chosen to file the O.P., for maintenance, only in the year 2008. However, she is said to have withdrawn the same. This would only reflect the amount of importance she has given to the matrimony. It is very difficult to believe that she was not aware of the decree dated 18-06-1998, for a period of ten years. The trial Court virtually ignored the limitation for filing of the application, under Order IX Rule 13 C.P.C., and entertained the I.A., which was filed ten years after the decree, that too, without requiring the respondent to file the application under Section 5 of the Limitation Act. There is another important angle to this case. After the decree of divorce was granted to him, the petitioner married another woman, and is said to have begot a child through her. That marriage was very much legal, since it was performed after the marriage between the petitioner and the respondent was dissolved. The effect of the order under revision would be, that the marriage of the petitioner with another woman would become illegal. The couple would become guilty of bigamy. The children born out of that wedlock would become illegitimate. When such serious consequences, as to their social status are involved, the present wife of the petitioner and the children through that marriage, become the effected parties, and they would have a say in the matter. No efforts were made in this direction. The approach of the trial Court cannot be countenanced, either on facts, or in law. The C.R.P is accordingly allowed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.06-08-2009. KO*