Madras High Court
M.Senthilkumar vs Sathya Nandhini
Author: T.Krishnavalli
Bench: T.Krishnavalli
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 01.03.2021
Date of Order 09.06.2021
CORAM:
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
CRP(PD)(MD)No.2558 of 2016
and
CMP(MD)No.12050 of 2016
M.Senthilkumar : Petitioner/Respondent/Petitioner
Vs.
Sathya Nandhini : Respondent/Petitioner/Respondent
PRAYER: Civil Revision Petition has been filed under Article
227 of the Constitution of India, against the fair and decreetal
order, dated 22.11.2016 passed in I.A No.175 of 2016 in HMOP No.
369 of 2014 on the file of the Family Court, Tirunelveli.
For Petitioner : Mr.V.Balaji
For Respondent : Mr.S.Siva Thilakar
ORDER
This Civil Revision Petition has been filed against the fair and decreetal order, dated 22.11.2016 passed in I.A No.175 of 2016 in HMOP No.369 of 2014 on the file of the Family Court, Tirunelveli. https://www.mhc.tn.gov.in/judis/ 2
2.The marriage between the petitioner/husband and the respondent/wife was solemnized on 01.05.2008 at Tirunelveli. After marriage, due to matrimonial tiff, they were living separately. The petitioner/husband filed a petition in HMOP No.369 of 2014 on the file of the Family Court, Tirunelveli, against the respondent/wife for divorce. The said petition was decreed on 30.12.2014. The respondent herein filed I.A No.175 of 2016 in HMOP No.369 of 2014 to set aside the ex-parte decree for dissolution of marriage with a petition to condone the delay of 577 days. The said application was allowed by the trial court, on 02.11.2016. Aggrieved over the same, the petitioner is before this court.
3.Heard both sides and perused the materials available on record.
4.The learned counsel appearing for the petitioner/husband submitted that no sufficient reasons were stated for setting aside ex-parte decree and the petitioner/husband contracted remarriage after the lapse of the appeal period, as per the settled proposition of law and the legal right accrued in favour of the https://www.mhc.tn.gov.in/judis/ 3 petitioner/husband and his newly married wife would affect, if the ex-parte decree was set aside and prays for allowing the civil revision petition.
5.On the side of the respondent/wife, it is argued that she came to know the ex-parte decree during year 2014, when she gave a complaint before the Commissioner of Police, Tirunelveli and after that, she was not well and her husband knew her address, but her husband gave fake address in the petition and hence, the summon was not served on her and thereafter, the ex-parte decree was passed and after knowing the ex-parte decree, now she filed the petition to condone the delay in setting aside the ex-parte decree, which was rightly allowed by the trial court and she has not sufficient means to maintain her and prays for dismissal of the civil revision.
6.The main contention of the petitioner/husband is that his wife changed so many address and hence, it is not possible to send the summons to her correct address. On perusal of the records, it is seen that the respondent/wife changed her address frequently. No document was filed on the side of the respondent/wife to prove that https://www.mhc.tn.gov.in/judis/ 4 she intimated the change of address to her husband. Without sending her change of address to her husband, the argument put forth on the side of the respondent/wife stating that her husband falsely stated her address in the petition and summons and hence, they were not served on her, is not at all acceptable.
7.In the petition, the respondent/wife stated that she came to know the ex-parte order only when she gave a complaint to the Commissioner of Police, Tirunelvelli. To prove it, no copy of the complaint was filed, which was allowed to be given before the Commissioner of Police, Tirunelveli. No explanation was given by the respondent/wife, who told her about the passing of ex-parte decree against her. The respondent/wife has not stated when she gave the complaint before the Commissioner of Police as against her husband. The respondent/wife stated in the ex-parte decree set aside petition that even though, she came to understand the ex- parte decree due to her health condition and lack of money, she was not in a position to file petition to set aside the ex-parte decree. On the side of the respondent, to prove that at that time, she was unwell, no document was filed. The respondent/wife filed the petition to condone the delay in filing petition to set aside the https://www.mhc.tn.gov.in/judis/ 5 exparte decree. Hence, it is the bounden duty of the respondent/wife to state the sufficient reasons. But on perusal of the petition filed by the respondent/wife to condone the delay, no sufficient reason was given. Further, the learned counsel appearing for the petitioner/husband argued that the petition to set aside the exparte decree itself is not maintainable, when one of the parties have remarried. For that, the learned counsel appearing for the petitioner/husband submitted a ruling reported in the 2016-2- L.W.333 (A.Raja Sundari Vs. Suresh Kumar). In that case, it has been held in para 13 to 16 as follows:-
“13. It has been held so, in the decision of Hon'ble Supreme Court in AIR 1975 SC 1409 (Venkateswaralu Vs. Motor and General Traders) and the relevant observation reads as under:
For making the right or remedy, claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.
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14. It would be relevant to consider the case of Surendra Kumar vs. Krian Devi reported in AIR 1997 Raj 63, where under, it has been held that when there is a valid remarriage and when the right of the second wife intervenes, the petition to set aside the exparte decree cannot be allowed and the observation is thus :
6. It has not been disputed before me that after passing of the exparte decree in favour of the petitioner by the Distt. Judge on 11-8-1992, the petitioner contracted a second marraige after four months. In such a situation, the important question that arises for determination is whether the ex parte decree can be set aside?
7.This question arose in Harjeet Singh v.
Guddi's case, (1987) 1 Rajasthan LR 520, and it was held by this Court that when second valid marriage is contracted, it is in the interest of justice to dismiss the application for setting aside the ex parte decree for divorce. Again the same question was considered in Smt. Shimla Devi v. V. Kiran Kumar's case, (1994) 3 WLC 519, and it was held that by contacting a second marriage, the interest of second wife intervenes.
15. From the decisions, it is clear that the dismissal of the application to condone the delay is an invited injury by the revision petitioner herself, and, unfortunately the revision petitioner has landed herself in such a position on account of her own conduct of negligence.
16. When this Court pointed out that the claim for alimony under Section 25 of the Hindu Marriage Act, 1955, should be settled, https://www.mhc.tn.gov.in/judis/ 7 the learned counsel for the respondent submitted that the respondent is paying maintenance to the child and that he is willing to consider the claim for permanent alimony provided an offer is made. Thereafter, there is no progress.
8.Already, it was decided that no sufficient reasons were stated by the respondent/wife to condone the delay in setting aside the ex-parte decree. Further, when a marriage was dissolved and after the expiry of the appal time, it is lawful for either party to marry again. In this case, also, the ex-parte decree was passed on 30.12.2014. But the respondent/wife filed the petition to condone the delay of ex-parte decree, on 04.08.2016. It is to be seen that in this case, after the expiry of the appeal time, the petitioner/husband married another woman. Hence, it is held that the petitioner/husband contracted second marriage, after the expiry of the appeal time, therefore, the petition to condone the delay in filing the ex-parte decree is not maintainable. But however, in this case, the respondent/wife has every right to claim interim alimony. The trial court without considering the above aspect, has allowed the petition to condone the delay in filing the appeal, which is liable to be set aside.
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9.In view of the above facts, this Civil Revision Petition is allowed, by setting aside the order, dated 22.11.2016 passed in I.A NO.175 of 2016 in HMOP No.369 of 2014 on the file of the Family Court, Tirunelveli. However, liberty is given to the respondent/wife to file a petition seeking for interim alimony as against the petitioner/husband in the manner known to law. No costs. Consequently, connected Miscellaneous Petition is closed.
09.06.2021 Index:Yes/No Internet:Yes/No er Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
https://www.mhc.tn.gov.in/judis/ 9 To
1.The Family Court, Tirunelveli.
2.The Record Keeper, V.R Section, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis/ 10 T.KRISHNAVALLI.J., er CRP(PD)(MD)No.2558 of 2016 09.06.2021 https://www.mhc.tn.gov.in/judis/