Allahabad High Court
Vineeta Dwivedi vs Lalit Kumar Dwivedi And 2 Others on 16 January, 2024
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:6750-DB Court No. - 29 Case :- FIRST APPEAL No. - 1390 of 2023 Appellant :- Vineeta Dwivedi Respondent :- Lalit Kumar Dwivedi And 2 Others Counsel for Appellant :- Rajendra Singh Parihar,Ashish Kumar Srivastava Hon'ble Vivek Kumar Birla,J.
Hon'ble Donadi Ramesh,J.
1. Heard Sri Ajay Kumar Rai holding brief of Sri Ashish Kumar Srivastava, learned counsel for the appellant.
2. Present appeal has been filed with the following relief:-
"The present appeal is being preferred against the judgment and decree dated 23.01.2023 passed by Additional Principal Judge, Family Court, Kanpur Nagar in Case No. 957 of 2007 (Lalit Kumar Dwivedi vs. Smt. Vineeta Dwivedi) under section 13 of the Hindu Marriage Act, 1955 whereby the divorce petition filed by the husband-deceased (Respondent No.1) has been decreed and order dated 18.10.2023 passed by Additional Principal Judge, Family Court, Court No. 3, Kanpur Nagar in Misc. Case No. 74/74/2019 (Vineeta Dwivedi vs. Lalit Kumar Dwivedi (deceased) and others) whereby Learned Principal Judge, Family Court rejected the application filed by the appellant under Order IX Rule 13 C.P.C. to recall the order dated 23.01.2013."
3. Submission of learned counsel for the appellant is that the divorce decree dated 23.1.2013 is ex-parte in nature, however, even after the ex-parte decree the husband and wife continued to live together. It is next submitted that although the husband of the appellant died on 19.11.2014, she was living in the same house and she is having two children and she was not aware of the passing of such ex-parte decree and when she came to know about the said decree she filed application under Order IX Rule 13 CPC along with application under Section 5 of the Limitation Act on 10.7.2019 registered as Misc. Case No. 74 of 2019, however, the court below illegally rejected the said application. Submission, therefore, is that the order dated 18.10.2023 passed by the court below rejecting the application under Order 9 Rule 13 CPC along with Section 5 Limitation Act application is liable to be set aside and in the facts and circumstances of the case the divorce decree dated 23.01.2013, being ex-parte in nature, is liable to be set aside otherwise the appellant as well as her two children will suffer irreparable loss. Learned counsel for the appellant sought to challenge the ex-parte judgments on merits.
4. We have considered the submissions and have perused the record.
5. Admittedly, the husband of the appellant had died. On pointed query how her application under Order IX Rule 13 CPC filed after five years of the death of her husband and after recalling ex-parte decree the same be set aside, by impleading her brother-in-laws (devar and jeth) is maintainable, learned counsel for the appellant has placed reliance on judgments in the cases of Yallawwa vs. Shantavva 1997 (11) SCC 159 and R Lakshmi vs. K Saraswathi Ammal 1996 (6) SCC 371 and submits that application under Order IX Rule 13 CPC at the instance of wife would be maintainable even after death of her husband challenging recall of grant of ex-parte divroce to him.
6. We find substance in the argument of learned counsel for the petitioner. We have also noticed that in a recent judgment passed by co-ordinate Bench of this Court in Garima Singh vs. Pratima Singh and others 2023(9) ADJ 101 the question as to whether first wife is entitled or not to file case under Section 11 and 17 of the Hindu Marriage Act for declaring her husband's marriage with another woman, as null and void was considered and after discussion it was held that the first wife is also entitled to do so.
7. We are not inclined to burden ourselves by quoting the judgments considered in the aforesaid case and only paragraphs 23 and 48 of the aforesaid judgment are quoted as under:-
"23. Finding a conflict between the judgment of the division bench of the Patna High Court in Kedar Nath Gupta (supra) case and a co-ordinate bench of this Court in Smt. Ram Pyari (supra) case, the legal question has arisen before us, post-enactment of the Family Courts Act, 1984. That legal issue is formulated as follows:
"Whether the first wife is entitled to file a case under sections 11 & 17 of the Hindu Marriage Act, 1955, for declaring her husband's marriage with another woman, as null and void?
48. In conclusion, we uphold the family court's decision, which grants the first wife, the respondent in this case, the right to file an application under section 11 of the Hindu Marriage Act. This application seeks the declaration of the second marriage as illegal and void. The Court affirms the validity of the impugned ruling, allowing the first wife to pursue legal recourse to nullify the second marriage on the grounds of its illegality. Accordingly, appeal is dismissed."
8. We, therefore, proceed to consider the present case on merits.
9. On perusal of record we find that in the ex-parte decree passed on 23.1.2013 under Section 9 of the Act clearly notices the fact that the appellant-defendant herein had appeared in the year 2007 and the proceedings lingered on for about six years. It is further reflected that the defendant had appeared on 18.12.2007 before the court and had obtained copies and thereafter it is after about two and half years the court directed to proceed ex-parte against her vide order dated 18.5.2010. Further details of the full knowledge of the divorce petition are also reflected on page 2 of the order dated 18.10.2023, which clearly mentions the fact that the divorce petition was filed on 22.9.2007 by the husband, wherein she had appeared personally on 16.11.2007 and received the copies and she again appeared on 15.5.2008 and thereafter she did not appear and vide order dated 28.10.2010 the case was directed to proceed ex-parte and therefore, proceeded ex-parte still for about 2-3 years till the decree was passed on 23.1.2013. Admittedly, husband of the appellant died on 19.11.2014 and the allegation is that when her sister-in-law started claiming rights on the petrol pump she was advised in April 2019 to get ex-parte judgment set aside and that her father-in-law had also died. Not only this, in her application she had further admitted this fact that from reliable sources she came to know in Februrary 2013 that the divorce petition has been allowed ex-parte on 23.1.2013.
10. We find that filing of the application under Order IX Rule 13 CPC along with Section 5 of the Limitation Act after six years and that too after five years of death of her husband is patently misconceived. It is on record that on 16.11.2007 she had appeared personally before the court and there is nothing on record to substantiate that she along with her children is still living in her matrimonial home or that she continued to live there even after ex-parte judgment / decree or divorce. The court below has specifically recorded a finding about absence of any evidence in this regard.
11. The appeal is devoid of merits and is accordingly dismissed at the admission stage itself.
Order Date :- 16.1.2024 Lalit Shukla