IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 38 of 2010 Rashmi Agarwal …..Appellant. Versus Akhilesh Kumar …..Respondent. Present : Mr. Milind Raj, Advocate present for the appellant. Mr. Lalit Kumar Tiwari, Advocate holding brief of Mr. S. K. Chaudhary, Advocate present for the respondent. Coram: Hon’ble Prafulla C. Pant, J Hon’ble Sudhanshu Dhulia, J. Prafulla C. Pant, J (oral) 1. This appeal, preferred under Section 28 of Hindu Marriage Act, 1955 read with Section 19 of Family Courts Act, 1984, is directed against judgment and decree dated 21.11.2007 passed by the Judge, Family Court, Udham Singh Nagar in Civil Suit No. 25 of 2007, whereby the said court has granted ex parte decree of divorce in petition under Section 13 of Hindu Marriage Act moved by respondent Akhilesh Kumar (husband). 2. Heard learned counsel for the parties. 3. Brief facts of the case are that the appellant got married to the respondent on 26.2.1996. Two daughters, namely, Sheetal and Khushi born out of wedlock. Respondent Akhilesh Kumar (husband) filed a petition for divorce under Section 13 of Hindu Marriage Ac, 1955 alleging that the appellant though lives in the husband’s house but she does not cook food either for the respondent (husband) or for his old mother. It is further alleged in the petition that she behaves with cruelty. The trial court decreed the suit ex parte after holding that no one turned up even after sufficient service on wife Rashmi Agarwal (present appellant). 4. Learned counsel for the appellant submitted before this Court that the wife had no knowledge of the divorce petition filed by her husband in the court. It is further pleaded that as soon as she (appellant) came to know of the decree, she moved an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short CPC) for setting aside the decree, which was dismissed by the trial court by order dated 31.5.2010. 2 It is contended that the trial court erred in law in granting the ex parte decree, and in dismissing the application under Order IX Rule 13 of the CPC. 5. During arguments, learned counsel for the parties conceded that the appellant (wife) is still living in her husband’s house. 6. Considering the affidavit filed on behalf of the appellant before the trial court with the application under Order IX Rule 13 of the CPC, we think it just and proper to set aside the impugned order passed by the trial court and to remand the case for fresh decision on merits. Therefore, the appeal is allowed. Impugned judgment and order dated 21.11.2010 and 31.5.2010 passed by Judge Family, Court, Udham Singh Nagar in Civil Suit No. 25 of 2007 are set aside. Delay condonation application and the application under Order IX Rule 13 of the CPC are also allowed. 7. The trial court is directed to decide the petition for divorce on merits. To avoid delay in disposal of the divorce petition, we direct that the parties shall appear personally or through their counsel before the trial court on 15.12.2010 at Camp Kashipur. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 25.11.2010 Kuldeep