Patna High Court
Smt. Geeta Kumari vs Sri Ashok Kumar Prasad on 25 April, 1991
Equivalent citations: 1992(1)BLJR146
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This Misc. Appeal under Order XLIII, Rule 1(d) of the Code of Civil Procedure arises out of a judgment, dated 22-7-1989 passed by Sri. Uma Shankar, 1st Additional District Judge in Misc. Case No. 1 of 1989.
2. The fact of the matter lies in a very narrow compass.
3. The respondent filed an application under Section 10(1) of the Hindu Marriage Act, 1935 for grant of a decree for judicial separation. The said application was registered as Matrimonial Title Suit No. 25 of 1988.
In the aforementioned suit, the appellant appeared on 28-7-1988 and filed her written statement on 19-11-1988. 8-12-1988 was the date fixed for settlement of issues and on that date issues were settled.
4. On 6-2-1989, date was fixed for reconciliation of this appellant and the respondent. On that date, an application was filed on behalf of the appellant stating that she was yet to make up her mind and as such some time should be granted in order to enable her to attend the reconciliation proceedings.
5. Allegedly, no order was passed in the said application and the case was transferred to the court of 1st Additional District Judge, Hazaribagh.
6. It appears from the order-sheet dated 23-2-1989 that the same were shown to the Advocate and a notice was also sent to the father of the appellant.
According to the appellant, however, she had not been residing at Hazaribagh but had been residing at Barsote were she has been working as a teacher.
7. On 10-3-1989, allegedly an application for amendment was filed on behalf of the respondent whereby and whereunder the suit for judicial separation was converted into a suit for divorce in terms of Section 13(1)(1a) and (1b) of the Hindu Marriage Act. Allegedly, the copy of the said application was not served upon the lawyer of the appellant.
8. It has furthers been alleged that the said application for conversion of the suit from judicial sepration to in one for divorce was allowed on the same date and on 23-8-1989, the case was taken up ex-parte and by a judgment dated 29-3-1989, the same was decreed.
9. On 6-4-1989, the appellant filed an application purported to be under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree whereupon, a case being Misc. Case No. 1 of 1989 was registered and on 4-5-1989, the respondent appeared in the aforementioned Matrimonial Case, although no notice was served upon him.
10. In the said application, the appellant alleged that she had been assured by her Advocate that her personal persence would not be required and she would be informed when the suit would be fixed for hearing.
According to the appellant, she used to reside at Barset with her three childred and her youngest daughter, who was aged about three years, remained seriously ill from January 1989 to March 1989 as a result whereof, she could not contact with her Advocate and did not receive any information till 1-4-19.9 regarding progress in the suit.
11. On 2-4-1989, the appellant came to Hazaribagh for a thorough check up of her daugher and she visited her Advocate but he was not available. She however, met him on 3-4-1989 when she was told that an inquiry would be made in the case and information would be given to her on 4-4-1989. She came to Hazaribagh again on 6-4-1989 and was informed by her lawyer that the suit was decreed ex-parte on 29-3-1989 and thereafter, she got the records of the Matrimonial case inspected through another Advocate on 6-4-1989 and as noticed hereinbefore, filed the said application for setting aside the ex-parte decree.
12. The respondent filed a rejoinder to the said application on 19-5-1989 alleging inter alia therein that her Advocate was her own brother-in-law. It was further mentioned that the father of the appellant is also a Steno attached to the court of 3rd Additional Judge, Hazaribagh and thus the appellant must have full knowledge regarding the progress of the matrimonial suit.
13. The respondent denied the allegation made in the said application. It was further stated that a copy of the application for amendment of the plaint was offered to the lawyer of the applicant, but he had refused to receive the same and thus it cannot be said that no opportunity was given to her to file an additional written statement.
14. Before the learned court below, five witnesses were examined on behalf of the appellant and five witnesses were examined also on behalf of the respondent.
15. The learned court below upon analysis of the evidences on record came to the conclusion that the appellant had not been able to prove her daughter's illness.
16. It was further held that the Advocate of the appellant, Sri Sheo Kumar Prasad, in the application for adjourment filed on 6-2-1989 did not mention about the illness of the appellant's daughter.
17. It further held that the order-sheet was shown to the Advocate about the transfer of the case and even the appellant's father was noticed.
18. The learned court below further held that as the respondent married again, the decision has become irreversible.
19. Mr. B.Y. Kishore, the learned Counsel appearing on behalf of the appellant submitted that the learned court below has taken into consideration various irrelevant matters and thus this appeal is fit to be allowed.
20. The learned Counsel also relied upon a decision of the Supreme Court in Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivastava and Anr. AIR 1967 SC 581 and in Uma Charan Roy v. Sm. Kajal Roy .
21. It is admitted that the lawyer for the appellant refused to accept the copy of the application for amendment of plaint filed on behalf of the respondent on 10-3-1989.
22. Evidently, the amendment which was allowed was drastic in nature in so far as thereby an application for judicial separation was sought to be converted into one under divorce.
As noticed hereinbefore, it was found by the learned court below as of fact that the counsel for the appellant refused to accept the copy of the said application.
23. The learned court below did not at all take into consideration the effect of non-service of any notice upon the appellant regarding the application for amendment to the application under Section 10 filed as a result whereof, the same was converted to one under Section 13 of the Act.
This aspect of the matter has not been considered by the learned court below at all. Further the learned court below appears to have swayed away by the fact that the respondent has married for the second time. Such a question was wholly irrelevant for the purpose of disposal of an application under Order IX, Rule 13 of the Code of Civil Procedure.
24. It is true that under the said Act, there is no provision for setting aside an ex-parte decree.
But, where an ex-parte decree has been passed, an application under Order IX, Rule 13 of the Code of Civil Procedure is maintainable, in view of Section 21 of the said Act.
25. In Arun Kautik Pawar v. Sau Laxmi Arun Pawar [1986 (1) Divorce and Matrimonial Cases], it has been held that an application under Order IX, Rule 13 is maintainable for setting aside a decree under Section 13 of the Act.
26. Section 15 of the Act provides as to when a divorced person may marry again.
27. In Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Shrivastava and Anr. AIR 1967 SC 581, it was held:
Section 15 provides that "when a marriage has been dissolved by a decree of divorce and there is no right of appeal against the decree or, if there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed it shall be lawful for either party to the marriage to marry again". These two sections make it dear that where a marriage has been dissolved, either party to the marriage can lawfully marry only when there is no right of appeal against the decree dissolving the marriage or, if there is such a right of appeal, the time for filing appeal has expired without an appeal having been presented, or if an appeal has been presented it has been dismissed. It is true that Section 15 does not in terms apply to a case of an application for special leave to this Court. Even, so we are of opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court's decree and thus take away from the losing party the chance of presenting an application for special leave. Even though Section 15 may not apply in terms and it may not have been unlawful for the first respondent to have married immediately after the High Court's decree, for no appeal as of right lies from decree of the High Court to this Court in this matter, we still think that it was for the first respondent to make sure where an application for special leave had been filed in this Court and he could not by marrying immediately after the High Court's decree deprive the appellant of the chance to present a special leave to this Court, If a person does so, he takes a risk and cannot ask this Court to revoke the Special leave on this ground. We need not consider the question as to whether the child born to the new wife on May 20, 1965 would be legitimate or not, except to say that in such a situation Section 16 of the Act may come to the aid of the new child. We cannot, therefore, revoke the special leave on the grounds put forward on behalf of the first respondent and hereby dismiss his application for revocation of special leave.
Reference, in this connection may also be made in Uma Charan Roy v. Smt. Kajal Roy .
27. In view of the fact, that the provision of Order IX, Rule 13 of the Code of Civil Procedure applies to a proceeding under the Hindu Marriage Act and in view of Section 15 of the Act, it cannot be said that the marriage of the respondent with another girl could be considred to be destructive of the right of the appellant to get the ex-parte decree of divorce set aside.
28. The learned court below had thus no jurisdiction to take into consideration the factum of second marriage of the respondent.
29. Further, in the impugned judgment, the learned court below has not stated as to when the respondent married for the second time. I am, therefore, of the opinion that the learned court below in passing the impugned judgment has taken into consideration an irrelevant fact, namely, that the respondent has married again and has not taken into consideration one relevant factor, namaly, the effect of non-service of a personal notice upon the appellant after the proceeding for obtaining a decree of judicial separation was allowed to be converted into one for divorce and thus the impugned order can not be sustained.
30. In the result, this appeal is allowed and the impugned judgment is set aside and the matter is remitted back to the learned court below for a decision on the entire matter afresh.
However, in the facts and circumstances of the case, there will be no order as to costs.