In the High Court of Punjab and Haryana at Chandigarh ..... CM No.13830-CII of 2011 and F.A.O. No.3735 of 2011 (O & M) .... Date of decision: July 27, 2011 Simal Kaur ...Appellant v. Jaswant Singh ........Respondents ..... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. Nakul Sharma, Advocate for the appellant. ..... Mohinder Pal, J. CM No.13830-CII of 2011: For the reasons stated in the application, which is supported by an affidavit, the same is allowed and the delay of 3 days in filing the instant appeal is condoned. FAO No.3735 of 2011 (O&M): The appellant has preferred this appeal against the impugned order dated 14.8.2010 passed by the learned Additional District Judge, Ferozepur, whereby the application filed by the appellant- F.A.O. No.3735 of 2011 (O & M) [2] Simal Kaur under Order 9, Rule 13 CPC for setting aside the ex parte judgment and decree dated 1.12.2005 passed by the learned Additional District Judge, Ferozepur was dismissed and the judgment and decree dated 1.12.2005 vide which the petition under Section 13 of the Hindu Marriage Act filed by the respondent (husband) was allowed. I have heard Mr. Nakul Sharma, Advocate, appearing for the appellant and have perused the impugned order and judgment of the Courts below. The marriage between the appellant and the respondent had taken place on 7.3.1999 at Village Bhagike as per Hindu traditions and customs. After the marriage, the parties stayed together as husband and wife at the respondent’s village Bhagike, Tehsil Nihal Singh Wala, District Moga for a few days. The respondent-husband was serving in the Indian Army. After his leave was over, he had joined his duties after a few days of the marriage. It is further stated in the petition that the appellant had insisted to go and stay with her parents at Village Balluana, as she was keen to re-join her job at PHC, Balluana (Civil Hospital, Abohar), which is a Government Hospital. However, she promised the respondent that she would stay with him on his return on leave from his job. In the divorce petition filed by the respondent-husband, it has been pleaded that the appellant kept her promise and she stayed with him as and when he came back on leave. Out of the wedlock of parties one son, namely, Navdeep Singh was born on 12.12.1999. It is further the case of the respondent-husband that after the birth of child, the appellant started quarreling with him on petty issues and tried to dictate her terms and F.A.O. No.3735 of 2011 (O & M) [3] conditions whenever he used to come on leave. Due to this, he had filed divorce petition under Section 13 of the Hindu Marriage Act which was got decreed vide ex parte decree dated 1.12.2005. It is the case of the appellant that the respondent-husband had filed a divorce petition with mala fide intention and got the ex parte-decree on 1.12.2005 passed by the then learned Additional District Judge, Ferozepur by misleading the Court and got service of summons effected upon the appellant by saying that the respondent had filed a transfer application and told the appellant not to appear in the Court as it was just a formality and, in this manner, the respondent fraudulently obtained an ex parte decree of divorce in spite of the fact that at that time they were residing together as husband and wife. It has further been submitted by the appellant that even during the pendency of the divorce petition, the respondent used to live with her at her parental home at Village Balluana since March 2006 as she was posted at Village Balluana. The appellant had alleged that they lived together till 26.4.2006 and thereafter she along with her minor child was turned out of the government quarter No.176/2 which was allotted to the respondent by the Army after giving her beatings. She came to know about the ex parte decree of divorce only on 6.6.2006 when the respondent disclosed this fact to her on telephone, hence she filed application under Order 9 Rule 13 CPC, which was dismissed by the learned Additional District Judge, Ferozepur on 14.8.2010. The learned Additional District Judge, Ferozepur while dismissing the application has observed that ex parte judgment of divorce was passed on 1.12.2005 whereas on perusal of the documents on the file show that in the order F.A.O. No.3735 of 2011 (O & M) [4] passed by the learned Judicial Magistrate Ist Class, Abohar it has been observed that the appellant herself had stated in her application filed on 28.11.2002 for grant of maintenance under Section 125 Cr.P.C. on behalf of her minor son in the Court of learned Judicial Magistrate Ist Class that she was residing separate from the respondent since November 2001. The said application was decided on 14.12.2009, which shows that the said application remained pending from the year 2002 to 2009. In these proceedings, the appellant never stated before that Court that she was residing with the respondent as his wife. The divorce petition remained pending from 2004 to 2005. Thus, it is clear that the appellant herself stated before a Court of law that she had been residing separate from the respondent. As she was residing separate from the respondent, she was granted maintenance under Section 125 C.P.C. also for the upbringing of her minor son, it was held that it cannot be said that she had been residing with the respondent at that time. Even in the divorce petition, the summons was issued at her parental address of Village Balluana which she had signed at the given address. From the file of the lower Court there was nothing from which it could be inferred that the respondent had been ever residing with her at her parental house in Village Balluana. From the above it may be noticed that the appellant had been taking two contradictory stands i.e. on the one hand she was saying that the respondent was residing with her at her parental house in Village Balluana whereas on the other hand, she was relying upon certain documents to argue that her children were studying at a school at the place of posting of her husband in the Army. The evidence led by the appellant did not inspire F.A.O. No.3735 of 2011 (O & M) [5] confidence as the appellant had raised two contradictory pleas which has rightly been declined by the Courts below. It may also be noticed that the appellant is not an ordinary housewife or illiterate lady. She is an educated lady and is in a government job. Therefore, the plea of the appellant could not be justified that when she had signed the summons she was served in the said divorce petition and at the mere asking of the respondent she did not appear before the Court. From the above discussion, it is clear that the appellant herself had admitted every time that she was residing separate from the respondent since 2001. Therefore, it can not be said that the respondent and appellant were residing as husband and wife during the period the said divorce petition remained pending from 2004 to 2005. It is clear that the appellant was very much served in the said divorce petition but she had chosen of her own not to appear before the Court. She can not wriggle out of her contradictory stand taken before the learned Additional District Judge, as on the one hand she had stated that she had been residing separately from her husband since 2001 in the application filed under Section 125 Cr.P.C. for maintenance before the Court of Judicial Magistrate, which remained pending from the year 2002 to 2009 and did not put in appearance in the pending divorce petition which remained pending from 2004 to 2005. Taking into consideration all the facts and circumstances of the case and particularly the fact that the appellant intentionally did not appear before the learned Additional District Judge in the divorce proceedings, I am of the considered opinion that the appellant cannot take benefit of her own wrongs. F.A.O. No.3735 of 2011 (O & M) [6] Accordingly, this appeal is dismissed. July 27, 2011. (Mohinder Pal) Judge *hsp*