Gujarat High Court
Tejas Jayendrakumar Kothari vs Shivangi Pankajbhai Bhatt on 9 October, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/CRA/460/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 460 of 2016
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TEJAS JAYENDRAKUMAR KOTHARI Versus SHIVANGI PANKAJBHAI BHATT ========================================================== Appearance:
MR RAJESH K SAVJANI(2225) for the PETITIONER(s) No. 1 MR SHIVANG M SHAH(5916) for the RESPONDENT(s) No. 1 MR HRIDAY BUCH FOR MS DHARA M SHAH(5546) for the RESPONDENT(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 09/10/2018 CAV ORDER Invoking the jurisdiction of this Court under Article 227 of the Constitution, the petitioner-husband has filed the present petition seeking to set aside order dated 08th September, 2016 below Exh.73 passed by leaned Principal Senior Civil Judge, Kalol in Hindu Marriage Petition No.46 of 2009. By the said application, what was prayed before the court below was to allow the Hindu Marriage Petition, which prayer was rejected and that has resulted into the present Revision Application.
2. Stating the gist of application Exh.73 and the prayer therein, it was submitted by the petitioner-applicant that since he had re-married after the ex-parte decree of divorce dated 11th February, 2010 passed in his Hindu Marriage Petition (HMP), leading to irreversible situation, the HMP was Page 1 of 11 C/CRA/460/2016 CAV ORDER required to be allowed.
3. The attendant facts are that the marriage between the petitioner-husband and the respondent- wife was solemnised on 26th January, 2008. On 19th September, 2009 petitioner-husband filed HMP No.46 of 2009 seeking divorce on the ground of cruelty. According to the say of the petitioner-husband, in May, 2008 the wife had left the matrimonial home out of her own volition, whereafter on account of the intervention of the elder family members, the spouses stayed together till 08th June, 2008 at Ahmedabad, but, as the case of the husband runs, the wife again left the matrimonial house on 04th July, 2008.
3.1 The aforesaid HMP filed by the husband came to be allowed ex parte on 11th February, 2010 and the decree of divorce was drawn. The petitioner-husband re-married on 21st May, 2010. According to the respondent-wife, she came to know on 19th July, 2010 about the ex parte decree in course of another collateral proceedings pending between the parties under the Domestic Violence Act, 2005, when the divorce decree was produced in the said proceedings. On 11th August, 2010, the wife filed application to set aside the ex parte decree and to condone the delay.
3.2 The application to set aside the decree was allowed on 10th May, 2011. The decree for divorce which was passed, came to be set aside and the HMP was restored to file. The said HMP is presently Page 2 of 11 C/CRA/460/2016 CAV ORDER pending. On 16th April, 2016 application Exh.73 was given by the petitioner-husband, in which it was stated the petitioner had re-married and two children were born out the settlement. It was prayed therefore to allow the HMP. The rejection of the said prayer is the order impugned herein.
3.3 In application Exh.73, the case of the petitioner was that the second marriage was contracted after the statutory period of appeal was over and that the respondent-wife was within the knowledge about the second marriage of the petitioner. The knowledge of the respondent-wife was sought to be attributed on the basis that wife had initiated the proceedings under the Domestic Violence Act as well as had filed criminal complaint. It was the case and contention that the judgment and decree for divorce having been passed on 11th February, 2010 and since the statutory period for preferring appeal was over, as envisaged under Section 15 of the Hindu Marriage Act, 1955, it was permissible and legal for the petitioner to re-marry.
3.4 The petition was contested by the respondent-wife, who in her affidavit-in-reply, contended that the conduct on part of the petitioner- husband in obtaining ex parte decree of divorce was fraudulent, that the decree was obtained behind the back and it was in absence of proper service of summons of the proceedings. It was stated that thereafter application to set aside ex parte decree was allowed by the Court on 10th May, 2011, which Page 3 of 11 C/CRA/460/2016 CAV ORDER order was biding to the petitioner. The respondent mentioned in her affidavit-in-reply, the proceedings initiated under the Domestic Violence Act, 2005 in view of physical and mental torture and to have social protection and that the Criminal Appeal in that regard is pending. Also referred to was the filing of criminal complaint under Section 498A of the IPC. It was contended that the trial court had rightly come to conclusion that the petitioner failed to show any provision of law under which the application below Exh.73 and the prayer made therein could be maintained.
4. Heard learned advocate Mr.Rajesh Savjani for the petitioner and learned advocate Mr.Hriday Buch who appeared for learned advocate Ms.Dhara M. Shah for the respondent.
4.1 It was submitted by learned advocate for the petitioner that the statutory period was over when the second marriage was contracted by the petitioner. It was submitted on the basis of the aspects that the proceedings under the domestic violence law was initiated on 21st June, 2010, that HMP No.20 of 2010 came to be filed by the wife on 11th August, 2010 for setting aside the ex parte decree, that complaint was also filed on 06th October, 2010 against the family members of the husband under Section 498A, which went to show that the wife had knowledge of the passing of the decree and the event of second marriage of the petitioner. Also came to be relied on the cross- examination of the wife for the same purpose. It was Page 4 of 11 C/CRA/460/2016 CAV ORDER also submitted that application Exh.62 was filed by the petitioner in the HMP proceedings to bring on record the subsequent events. The order below Exh.73 was sought to be justified under Section 151 of the Code of Civil Procedure, 1908.
4.2 Several decisions were relied on by learned advocate for the petitioner. Firstly pressed into service was the decision of the Supreme Court in Suman Kapur v. Sudhir Kapur [(2009) 1 SCC 422] in which the Supreme Court explained the types and ingredients of cruelty. In that case, the respondent- husband had re-married in 60 days of the decree of divorce confirmed by the High Court and it was held that since time period of SLP was 90 days, no precipitative action could have been taken by the respondent-husband by creating a situation of fate accompli. This decision did not help the petitioner- husband in any manner in the present case. Another decision in K. Srinivas v. K. Sunita [(2014) 16 SCC 34] was relied on in which it was inter alia held that filing of false criminal complaint against the husband and family members could be regarded as one of the constituent of matrimonial cruelty. By pressing into service Malathi Ravi, M.D. v. B.V. Ravi, M.D. [(2014) 7 SCC 640] it was submited that event subsequent to one spouse leaving marital home can be the basis for mental cruelty, if established on undisputed material brought on record.
4.3 Yet another decision in K. Srinivas Rao v.
D.A. Deepa [(2013) 5 SCC 226] was relied on to
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C/CRA/460/2016 CAV ORDER
highlight that false complaint or criminal
proceedings taken cumulatively with other
circumstances may become mental cruelty and would
warrant the decree of divorce. By referring to
decision in Ramesh Kumar v. Kesho Ram [1992 Supp (2) SCC 623] it was submitted that subsequent events which have material bearing on the entitlement of the parties to relief could be taken into consideration by the Court for molding the relief. Thereafter decision in Challamane Huchha Gowda v. M.R. Tirumala [(2004) 1 SCC 453] was relied on to submit that a mere non-mentioning or could not mentioning provision in the pleadings is not a ground to reject the pleadings. Learned advocate for the petitioner left no stone unturned to assail the impugned order until he rested on decision of Patna High Court in Sri Rajesh Kumar v. Smt.Pushpa Rani being Civil Review No.04 of 2016 in M.A. No.513 of 2009 decided on 16th September, 2016.
4.4 Learned advocate for the respondent submitted that the ex parte decree of divorce has now already been set-at-naught and that the proceedings of Hindu Marriage Petition are alive, to be considered on merits. He submitted that there was no provision in law which could permit a short-cut for the petitioner-husband and to grab the decree of divorce. Learned advocate for the respondent-wife pressed into service the decision of the Supreme Court in Savitri Pandey v. Prem Chandra Pandey [(2002) 2 SCC 73] more particularly paragraphs 14 and 15 thereof.
Page 6 of 11C/CRA/460/2016 CAV ORDER 5. Basic dates may be recapitulated. The
petitioner-husband filed Hindu Marriage Petition on 19th September, 2009. The ex parte decree came to be passed on 11th February, 2010. The wife came to know about passing of decree as per her case on 19th July, 2010. She made application under Order IX Rule 13, CPC, for setting aside ex parte decree on 11th August, 2010. The said application came to be allowed on 10 th May, 2011. The husband had appeared in the said proceedings. Thereafter the petitioner-husband re- married.
5.1 Having attentively noticed the facts of the case and having considered the rival submissions carefully, it emerges that the ex parte decree of divorce which was passed by the Court came to be set aside. The case of the respondent-wife that summons was not properly served which deprived her of her defence and resultantly the ex parte decree came to be passed was accepted by the court below. Consequentially the marriage petition is presently alive to be considered on its merits. The petitioner has not challenged the said order of setting aside the ex patre decree. In other words, all the contentions of both the parties and the issue involved in the the Hindu Marriage Petition filed for divorce are large open to be considered. Merely because it is the say of the husband that the second marriage was validly entered into after ex parte decree, the husband cannot be said to be becoming entitled to get the decree of divorce by getting the relief prayed for in application Exh.73 without Page 7 of 11 C/CRA/460/2016 CAV ORDER allowing the trial of the Hindu Marriage Petition. Filing of application Exh.73 was indeed a short-cut adopted by the petitioner-husband, which was not permissible. The learned Judge below could not be said to have committed any error when he observed that there was no provision for filing the application of such nature. The submission could hardly be countenanced that the application of such kind and nature as was filed at Exh.73 could have been filed under Section 151, CPC, and could have been viewed to be within purview of the said provision.
5.2 On the basis of the averments in application Exh.73, the finding cannot be jumped at to conclude that the case for divorce and ground urged for divorce were established and proved. These are the issues, aspects and concerns to be addressed in course of trial. Whether the act of re-marriage by the petitioner-husband was proper in terms of his conduct and its permissibility of law, is required to be examined. The respondent-wife is entitled to raise doubt about bona fides of such conduct to oppose the decree of divorce.
5.3 In Savitri Pandey (supra) relied on by the respondent, it was held that co-habitation by husband and wife is an essential feature of a valid marriage. It was held that re-marriage by the divorced person during the pendency of the appeal which was filed after expiry of limitation period, would be at the risk of the party entering into such re-marriage and Page 8 of 11 C/CRA/460/2016 CAV ORDER its validity was entirely dependent on the outcome of the pending appeal. In that case the submission that marriage between the appellant and the respondent ought to have been dissolved, was not accepted on facts.
5.4 In Savitri Pandey (supra), it was a submission canvassed by learned advocate for the appellant-wife that after the decree of divorce, the appellant had re-married with one Sudhakar and out of the second marriage, a child was also stated to have born and that it would be in the interest of justice and the parties that the marriage between them was dissolved by decree of divorce. The court observed in response that in order to appreciate such submission, facts have to be adverted to in each case and that the interest of the public as well as interest of th society may have to be borne in mind. In the case before the Supreme Court, the second marriage was entered into during the pendency of the appeal before the High Court. The Supreme Court specifically stated that right of at least one appeal is a recognised right under all systems of civilised legal jurisprudence. It was stated that despite pendency of the appeal, the appellant opted to solemnised the second marriage which, stated the Supreme Court, an adventure undertaken at her own risk and the ultimate consequence arising of the judgment in an appeal pending in the High Court.
5.5 The Supreme Court in Savitri Pandey (supra) further observed that in all cases relied on by the Page 9 of 11 C/CRA/460/2016 CAV ORDER appellant, marriage between the parties was dissolved by decree of mutual consent and that the facts and circumstances of each case was taken into account and further that in almost all cases the other side was compensated by grant of lumpsum amount and permanent provision regarding maintenance. The Apex Court succinctly observed, "No person can be permitted to flout the course of justice by his or her overt and covert acts". It was observed further that, "The marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive".
6. The facts of the present case also have to be guided by the aforesaid principle. Furthermore, whether the wife had knowledge of the fact of the petitioner-husband of re-marrying, is a factual aspect to be gone into to be decided on evidence. Whether it was a desertion by wife voluntarily acted upon is also to be based on evidence. The ground of cruelty raised by the petitioner-husband seeking divorce has to be established in its legal sense and dimensions. Without all these questions being addressed in the parent proceedings of Hindu Marriage Petition, it is not possible to countenance the bald submission, that too made by way of an interim application, that because the marriage was contracted after the ex parte decree of divorce and which, in the perception of the petitioner-husband was after expiry of the statutory period, the decree of divorce would have to be passed. As all the grounds and Page 10 of 11 C/CRA/460/2016 CAV ORDER questions raised by the parties are at large to be considered and decided in the proceedings of Hindu Marriage Petition, the fact of re-marriage cannot be a ground, in any view, to get decree for divorce automatically by seeking such prayer in interim application.
7. In the aforesaid view and for the reasons recorded hereinabove, the rejection of application below Exh.73 by learned Principal Senior Civil Judge, Kalol, in H.M.P. No.46 of 2009 is not liable to be interfered with. The Civil Revision Application therefore fails and the same is hereby dismissed. Notice is discharged. Interim relief granted on 15th September, 2016 stands vacated. The trial court shall proceed with the H.M.P. No.46 of 2009 in accordance with law.
(N.V.ANJARIA, J) FURTHER ORDER After the above order is pronounced, learned advocate Mr.Savjani requested that interim relief which has been continued since 15th September, 2016 may be continued for some time to enable the petitioner to approach higher forum. Learned advocate Mr.Hriday Buch objected the prayer.
In the facts and circumstances of the case, interim relief operation in the Civil Revision Application shall continue to operate till 12th November, 2018.
(N.V.ANJARIA, J) Anup Page 11 of 11