Calcutta High Court (Appellete Side)
Jharna Rani Ghosh Alias Jharna Ghosh vs Prabir Kumar Ghosh on 22 August, 2014
Author: Nishita Mhatre
Bench: Nishita Mhatre, Tapash Mookherjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Appellate Side
P R E S E N T:-
The Hon'ble Mr. Justice Nishita Mhatre
The Hon'ble Mr. Justice Tapash Mookherjee
F.M.A. No. 1061 of 1991
With
C.A.N. No. 3776 of 2005
Jharna Rani Ghosh alias Jharna Ghosh
Versus
Prabir Kumar Ghosh
For the Appellant :- Ms. Sima Ghosh, Advocate
For the Respondent :- Mr. Subrata Kr. Roy Karmakar, Advocate,
Mr. Nanigopal Chakraborty, Advocate, Mr. Abhishek Banerjee, Advocate.
Heard on : 28.07.2014 Delivered on:. 22.08.2014 Tapash Mookherjee, J:
1. The present appeal is directed against the order No. 26, dated 19.03.1991 passed by the learned Additional District Judge, 1st Court at Howrah in Misc. Case No. 20 of 1989 arising out of Matrimonial Suit No. 2005 of 1989.
2. The facts leading to the present appeal briefly stated are as follows:-
3. The Appellant Smt. Jharna Rani Ghosh and the Respondent Sri Prabir Kumar Ghosh were married on 6th day of Jhaistha 1384 BS according to Hindu Rites and Customs. The parties had a peaceful conjugal life for sometimes after the marriage.
Subsequently, matrimonial disputes developed between the parties as a result of which the Appellant/Wife left her matrimonial home with all her belongings in the month of October, 1978. The Respondent/Husband tried to call back the Appellant/Wife to their matrimonial home, but failed. So the Respondent/Husband filed a Suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 in the year 1980. The Appellant/Wife also filed an application in the year 1986 under Section 125 of the Code of Criminal Procedure praying for maintenance allowance for her.
4. The aforesaid Matrimonial Suit for restitution of conjugal right had been dismissed for default on 22.04.1988 and thereafter Respondent/Husband filed a Suit for divorce under Section 13 of the Hindu Marriage Act, 1955, on 29.09.1988 against the Appellant/Wife, before the Court of learned District Judge, Howrah being Matrimonial Suit No. 205/1988. The Appellant/Wife's application for maintenance allowance under Section 125 of the Code of Criminal Procedure registered as Misc. Case No. 87 of 1986 was allowed ex parte on 11.01.1989 and the Respondent/Husband was directed to pay maintenance allowance at the rate of Rs. 250.00 (rupees two hundred fifty only) per month for the maintenance of the Appellant/Wife and the said maintenance allowance is being paid regularly as claimed.
5. Meanwhile, the Matrimonial Suit No. 205/1988 filed by the Respondent/Husband for divorce under Section 13 of the Hindu Marriage Act had been decreed ex parte on 12.12.1988 and the matrimonial tie between the parties had been severed by the aforesaid decree of divorce and thereafter the Respondent/Husband contracted a second marriage on 25.07.1989, i. e., after the period of appeal against the ex parte decree of divorce.
6. On 26.09.1989 the Appellant/Wife filed an application under Order 9 Rule 13 of the Code of Civil Procedure registered as Misc. Case No. 23 of 1989 for setting aside of the aforesaid ex parte decree of divorce on the ground that she had no knowledge about the decree of divorce passed against her ex parte as no notice or summons of the Suit had been served on her. In the month of September, 1989 the Appellant/Wife also filed a Criminal Case under Section 494 of the Indian Penal Code alleging bigamy against the Respondent/Husband. The aforesaid complaint under Section 494 of the Indian Penal Code had been dismissed under Section 203 of the Code of Criminal Procedure on 28.03.1990.
7. Learned Additional District Judge, 1st Court at Howrah dismissed the aforesaid application under Order 9 Rule 13 of the Code of Civil Procedure on 19.03.1991 on the ground that the application under Order 9 Rule 13 of the Code of civil Procedure was not legally maintainable since the Respondent/Husband by that time contracted a second marriage after the period for appeal against the decree of divorce passed ex parte and as such the second marriage of the Respondent/Husband was quite a valid marriage under Section 15 of the Hindu Marriage Act. Being aggrieved by and dissatisfied with such order of the learned Trial Court the Appellant/Wife filed the present appeal challenging the aforesaid order of the learned Trial Court.
8. The Appellant/Wife has also filed an application under Section 24 of the Hindu Marriage Act in this Court of appeal on 18.03.2005 claiming alimony pendente lite and expenses for the Suit. Some interim orders have been passed in connection with the aforesaid application under Section 24 of the Hindu Marriage Act, although the application has not been finally disposed of.
9. Learned Counsel for the Appellant/Wife argued that the decree of divorce passed ex parte by the Trial Court had been passed behind the back of the Appellant/Wife as notice or summons of the suit had never been served upon her. Learned Counsel for the Appellant/Wife argued further that the second marriage of the Respondent/Husband after the decree of divorce cannot defeat the legal rights of the Appellant/Wife to file the application under Order 9 Rule 13 of the Code of Civil Procedure for the setting aside of the ex parte decree of divorce. She further argued that justice has been denied to the Appellant/Wife who is a helpless woman and hence the order passed by the learned Trial Court on 19.03.1991 dismissing the application under Order 9 Rule 13 of the Code of Civil Procedure should be set aside and the said application should be restored to its file and number by this Court of Appeal, and tried on merit.
10. On the other hand learned Counsel for the Respondent/Husband argued that the notice of the Suit for divorce had been duly served upon the Appellant/Wife as recorded by the learned Trial Court and the Appellant/Wife had deliberately avoided to contest the Suit. So the learned Trial Court had rightly recorded the evidence and passed the decree of divorce ex parte. Learned Counsel for the Respondent/Husband argued further that after the decree of divorce had been passed ex parte the Respondent/Husband waited for long period even after the period of remarriage prescribed in Section 15 of the Hindu Marriage Act and only thereafter the Respondent/Husband contracted a second marriage and children have also been born in the second marriage which is a valid marriage. The fact being so, the Appellant/Wife had no right whatsoever in connection with her marriage with the Respondent/Husband and learned Trial Court was, therefore, right in law to dismiss the application under Order 9 Rule 13 of the Code of Civil Procedure filed by the Appellant/Wife, as being not maintainable in law.
11. Admittedly the parties were married according to Hindu Rites and Customs on 6th day of Jaistha 1384 B.S. It is also admitted that the Appellant/Wife left her matrimonial home in the year 1978 and thereafter some litigations had been fought between the parties and ultimately the Respondent/Husband filed a Suit for dissolution of the marriage under Section 13 of the Hindu Marriage Act, 1955 on 29.09.1988, being registered as the Matrimonial Suit No. 205/1988 in the court of learned District Judge at Howrah which was decreed ex parte on 12.12.1988 by the Court of learned Additional District Judge, 1st Court at Howrah. It is also admitted that after obtaining such ex parte decree of divorce the Respondent/Husband entered into a second marriage on 25.07.1989 after complying with the provisions of remarriage after divorce as prescribed in Section 15 of the Hindu Marriage Act, 1955. Subsequent to such second marriage the Appellant/Wife filed a complaint case against the Respondent/Husband alleging bigamy under Section 494 of the Indian Penal code which had been summarily dismissed under Section 203 of the Criminal Procedure Code and lastly the Appellant/Wife filed an application under Order 9 Rule 13 of the Civil Procedure Code for the setting aside of the ex parte decree of divorce passed on 26.09.1989 which had been dismissed by the learned Additional District Judge at Howrah on 19.03.1991. Being aggrieved by such order of dismissal the Appellant/Wife filed the present appeal before this Court.
12. The application of the Appellant/Wife under Order 9 Rule 13 of the Code of Civil Procedure had been dismissed by the learned Trial Court on the ground that after the remarriage of the Respondent/Husband all the rights of the Appellant/Wife for the revival of her matrimonial relation got automatically lost and hence her application for the restoration of the Suit of divorce was not maintainable in law.
13. Learned Counsel for the Appellant/Wife argued that the summons of the Suit for divorce had not been served upon the Appellant/Wife and the ex parte decree of divorce had been obtained by the Respondent/Husband by all kind of manipulation of the process of the Court and as such the ex parte decree had been passed behind the back of the Appellant/Wife depriving her of valuable right to contest the Suit. Learned Counsel for the Appellant/Wife argued further that the application for restoration of the Suit should have been decided by the learned Trial Court on the basis of merit and since it had not been done so, the order of dismissal passed should set aside in this appeal. On the other hand, learned Counsel for the Respondent/Husband emphatically argued that the Appellant/Wife refused to accept the summons though Court as it is found from the process server's reports and the summons issued by the Court through registered post had been duly served upon the Appellant/Wife as found from the postal acknowledgement card returned to the Court. He further argued that after recording such facts of service of summons the learned Trial Court preceded to hear the Suit ex parte.
14. Learned Counsel for the Respondent/Husband also argued that Section 15 of the Hindu Marriage Act, 1955 prescribes as to when a divorced person can remarry and that the Respondent/Husband contracted the second marriage after strict compliance with the aforesaid provision. His further contention was that after divorce the husband or the wife as the case may be cannot be asked to wait for indefinite period for remarriage and so the second marriage of the Respondent/Husband is quite valid in law and the fact being so, the learned Trial Court committed no error in law by dismissing the application under Order 9 Rule 13 of the Civil Procedure Code by the Appellant/Wife as being not maintainable in law.
15. As mentioned earlier, the decree of divorce had been passed on 12.12.1988 and the Respondent/Husband contracted the second marriage on 25.07.1989, i.e., after more than seven months.
16. Section 15 of the Hindu Marriage Act, 1955 reads as under: "when a marriage has been dissolved by a decree of divorce and either 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."
17. The Section has been radically amended in the year 1976. Before such amendment there was a proviso to the Section the said proviso laid down that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the Court of the first instance.
18. The reduction of the waiting period for remarriage by the aforesaid amendment itself suggests that the intention of the legislature is to settle the rights of the Husband and Wife after divorce permanently, at the shortest period of time. In fact, the fate of a couple after divorce should not be kept hanging for a long and indefinite period. Such an uncertainty does not help either of the parties in the marriage in any way.
19. It has been mentioned earlier that the Respondent/Husband contracted second marriage after more than seven months after the ex parte decree of divorce had been passed. Needless to mention that the Respondent/Husband had no occasion to contemplate the filing of an application under Order 9 Rule 13 of the Civil Procedure Code by his wife. So the second marriage of the Respondent/Husband does not suffer from any illegality whatsoever. There cannot be two valid marriages of a person existing at the same time.
20. The matrimonial relationship between the parties in this case had irretrievably broken down long ago due to which the parties are living separately since the year 1978 and the parties are in the legal battlefield for about 36 years and the issue is obviously the 'dead relation'. Carrying on such battle any further will not land any of the parties anywhere. Two children were born long ago of the second marriage of the Respondent/Husband and those children are now quite grown up. So five lives are at stake. We are, therefore, of the considered view that the fight should come to an end right now.
21. During the pendency of the appeal attempts were made for an amicable settlement of the dispute between the parties but all such attempts failed.
22. During the hearing of the appeal the main point of thrust by the learned Counsel for the Appellant/Wife was the financial insecurity of the Appellant/Wife and definitely, i.e., a matter of great concern to this Court also.
23. So considering the peculiar facts and circumstances of the case we are of the view that a pragmatic approach should be taken by the Court to strike a proper balance between the two extreme situations and for such purpose the appeal should be dismissed especially when the Respondent/Husband's second marriage is valid in law. The application of the Appellant/Wife for alimony pendente lite has not been finally decided although the Respondent/Husband was directed to pay provisionally an amount of Rs. 10,000.00 (rupees ten thousand only) to the Appellant/Wife as alimony pendente lite (order dt. 04.12.2013). It took a long time to dispose of the appeal. The Appellant/Wife was responsible for it to a great extent as she took long five years to file requisites. Be that as it may, in view of the circumstances stated above let the Respondent/Husband be directed further to pay a lump sum amount of Rs. 1,00,000.00 (rupees one lakh only) to the Appellant/Wife on account of maintenance pentente lite and the Appellant/Wife be also given the liberty to file the application for her permanent alimony according to law in appropriate forum. Accordingly ordered that the appeal is allowed on contest. The order passed by the learned Additional District Judge, 1st Court at Howrah on 11.01.1989 in Misc. Case 87/1986 is hereby affirmed.
24. The Respondent/Husband will pay to the Appellant/Wife a sum of Rs. 1,00,000.00 (rupees one lakh only) within a month from this day as her alimony pendente lite and costs of litigations.
25. The Appellant/Wife is given the liberty to file application for her permanent alimony if advised so.
26. The C.A.N. application being No. 3776 of 2005 is disposed of.
27. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities.
(Tapash Mookherjee. J) ( Nishita Mhatre. J)