Madras High Court
Vasirajan vs Radhika @ Alagammal
C.R.P.(MD)No.1592 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 15.03.2024
PRONOUNCED ON: 26.04.2024
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
C.R.P.(MD)No.1592 of 2018
and
C.M.P.(MD)No.6958 of 2018
Vasirajan : Petitioner/Respondent/Petitioner
Vs.
Radhika @ Alagammal : Respondent/Petitioner/Respondent
PRAYER:- Civil Revision Petition is filed under Section 115 of the
Code of Civil Procedure against the fair and executable order dated
14.02.2018 passed in the application in I.A.No.46 of 2017 in
H.M.O.P.No.51 of 2012, on the file of the Sub Court, Theni.
For Petitioner : Mr.J.Barathan
For Respondent : Mr.R.S.Bakshi Gulam Mohamed
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C.R.P.(MD)No.1592 of 2018
ORDER
The Civil Revision Petition is directed against the order passed in I.A.No.46 of 2017 in H.M.O.P.No.51 of 2012, dated 14.02.2018, on the file of the Subordinate Court, Theni, allowing the petition filed under Section 5 of the Limitation Act.
2. It is not in dispute that the marriage between the petitioner and the respondent was solemnised on 03.04.1997. The revision petitioner, as the petitioner/husband filed a petition in H.M.O.P.No.51 of 2012 under Section 13(1)(ia)(ib) of the Hindu Marriage Act against the respondent/wife seeking divorce against the respondent on the ground of cruelty and desertion, on the file of the Subordinate Court, Theni. The respondent/wife has entered into appearance through her Counsel and since she has not filed her counter statement on 13.09.2012, she was called absent and set exparte and that subsequently exparte order of divorce came to be passed on 22.02.2013.
3. For the sake of convenience and brevity, the parties will be referred as per their status and ranking in the trial Court. 2/15 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.1592 of 2018
4. The respondent/wife has filed an application under Section 5 of the Limitation Act to condone the delay of 1400 days in filing the application for setting aside the exparte order of divorce dated 22.02.2013 in I.A.No.46 of 2017. The petitioner/husband has filed counter statement raising serious objections. During enquiry, the petitioner as well as the respondent have not adduced any oral evidence. But the petitioner has exhibited three documents as Exs.P.1 to P.3 and the respondent has exhibited two documents as Exs.R.1 and R.2. The learned Subordinate Judge, Theni, upon considering the evidence and on hearing the arguments of both sides, has passed the impugned conditional order dated 14.02.2018, directing the respondent/wife to pay costs of Rs.1,500/- to the petitioner/husband on or before 22.022018, failing wich, the petition shall stand dismissed. Aggrieved by the impugned order, the husband has filed the present Civil Revision Petition.
5. The case of the respondent/wife in the petition filed under Section 5 of the Limitation Act is that the petitioner's father's name is Malaivel Gounder and his grandfather's name is Ramasamy Gounder, that the petitioner with ulterior motive by showing that Ramasamy Gounder as his father, has filed the main O.P., that the respondent was 3/15 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.1592 of 2018 not aware about the filing of the divorce petition while they were living happily, with an intention to remarry another girl, that when the respondent enquired about the petition, the petitioner has stated that he has not filed the above petition and some other person has filed the same, that the respondent was having issue on her leg joints and she was not in a position to walk and to gather information and that is why, she could not appear before the concerned Court directly or through Advocate, that the respondent's father was also not well and was taking continuous treatment, that the respondent came to know about the exparte order of divorce only on 08.09.2016, that the respondent is having good defence in the main O.P., that the respondent has also filed her counter statement along with the above application, that the delay is neither wilful nor wanton and that the respondent will be put to irreparable loss and hardship, if the delay is not condoned.
6. The defence of the petitioner/husband is that he has filed the divorce petition on 26.03.2012, that notice was served on the respondent and entered into appearance through her Counsel Thiru.R.Balamurugan, that since the respondent has not filed the counter statement and failed to appear, she was set exparte and orders came to be passed in his favour, 4/15 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.1592 of 2018 that the petitioner, after the appeal time, has married one Renuga, daughter of Ramasamy of Kuppusamy Naidupuram on 27.11.2014 at Harivaradharaja Perumal Temple, Vellalur and the marriage was also registered before the Sub Registrar Office, Palladam on 28.11.2014, that after the petitioner's remarriage, the respondent at the instigation of others, with sole intention to cause loss, mental agony and harassment, has filed the above petition for setting aside the exparte order with the delay of more than 1300 days, that the respondent has not produced any evidence to show that the respondent and her father's ill health and their treatment, that the respondent has not shown any valid reason to condone the delay of more than 1300 days and that since the petition is not having any merits, the same is liable to be dismissed.
7. It is not in dispute that the petitioner – Vasirajan is the son of Malaivel Gounder and the said Malaivel Gounder is the son of Ramasamy Gounder. The main contention of the respondent is that the petitioner by showing Ramasamy Gounder as his father, has filed the above divorce O.P., purposely and has obtained exparte order of divorce fraudulently. As rightly pointed out by the learned Counsel for the revision petitioner, though in the main O.P., the petitioner's father's name 5/15 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.1592 of 2018 has been shown as Ramasamy Gounder, the name of Malaivel Gounder was shown as the father of the petitioner – Vasirajan. As rightly contended by the learned Counsel for the revision petitioner, in the decreetal order passed by the Subordinate Court, Theni, in H.M.O.P.No. 51 of 2012, the petitioner has been described as the son of Malaivel Gounder. The respondent has not produced the summons / notice served on her to show that the petitioner's father name was not shown, but some other person's name was shown.
8. As rightly contended by the learned Counsel for the revision petitioner, the trial Court has given a finding that the contention of the respondent that the petitioner by serving notice on the respondent by changing his father's name, had obtained exparte order of divorce, is acceptable. As already pointed out, in the main petition itself, though originally the grandfather's name of the petitioner was written, the same was erased and Malaivel Gounder's name was mentioned. Morevoer, since the said Court has passed the decree by showing the petitioner as son of Malaivel Gounder, this Court is at loss to understand as to on what basis such a finding or observation was made by the trial Court. 6/15 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.1592 of 2018
9. The main contention of the respondent is that herself and her father were not well at that point of time and both were taking treatment and hence, she could not appear before the concerned Court nor engaged any Counsel to represent her before the concerned Court. Though the respondent in the affidavit has alleged that she was having leg joints issue and his father was also taking treatment, but she has not elaborated anything further. Admittedly, the respondent has not produced any iota of material or evidence to show that the respondent and her father were not well and were taking treatment at the relevant point of time.
10. As rightly contended by the learned Counsel for the revision petitioner, it is not the specific case of the respondent that summons / notice in main H.M.O.P., was not at all served on her. Though she has alleged that she was not aware of the proceedings, in the same affidavit, she has stated that the main O.P., was posted to 22.02.2013 for filing of the counter statement, that when the petitioner was equired about the filing of the petition, he informed that he has not filed the petition and some other person has filed the petition and the relevant portion is extracted hereunder:
7/15
https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.1592 of 2018 “ ...... vdJ fzth; / kDjhuh; ne;j kDit vd;Dld; re;Bjhrkhf thH;e;Jte;j fhyj;jpByBa vdf;Fj; bjhpahkByBa BtW xU bgz;iz kWkzk; bra;Jbfhs;Sk; Behf;fj;BjhL bgha;ahd jftiyj; je;J nk;kDtpid nr;rK:fk; ePjpkd;wj;jpy;
jhf;fy; bra;Js;shh; vd;w tpguk; vdf;F mg;BghJ bjhpatpy;iy. ehd; nJ Fwpj;J Bfl;lBghJ nk;kDit ehd; jhf;fy; bra;atpy;iy vd;Wk;, njid BtW vtBuh jhf;fy; bra;Js;sdh; vd;Wk; vd;dplk; brhy;yp ek;gr; bra;jhh;. BkYk; nf;fhyA;fspy; vdf;F fhy;K:l;L tpyfy; Vw;gl;Lk;, bjhlh;r;rpahf cly;eyk; bfl;Lk;, vGe;J elf;f KoahkYk; nJ rk;ge;jkhf ehd; vA;Fk; brd;W chpa tpguk; Brfhpf;ft[k;, cz;ik bjhpe;J vjph;thjk; bra;a tha;g;g[ bgwKoahkYk; Bgha;tpl;lJ. vdBtjhd; ehd; Behpy; M$uhfpBah my;yJ vdJ jug;gpy; xU tHf;fwpqiu epakpj;Bjh cz;ik tpguk; Twp vdJ jug;g[ vjph;ciuia chpa fhyj;jpy;, chpathW jhf;fy;
bra;a vd;dhy; nayhky; Bgha;tpl;lJ.”
11. Considering the above, as rightly contended by the learned Counsel for the petitioner, it is not the case of the respondent that she was not aware of the institution of the divorce petition and the pending 8/15 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.1592 of 2018 proceedings. Though the respondent/wife has alleged that she came to know about the exparte divorce on 08.09.2016, she has not stated anything from whom she has received the information.
12. It is pertinent to mention that after the decree of divorce granted on 22.02.2013, the respondent had married one Ramya, D/o Ramasamy on 27.11.2014 after the lapse of 1 ¾ years. At this juncture, it is necessary to refer Section 15 of the Hindu Marriage Act:
“15. Divorced persons when may marry again: 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.” It is pertinent to note that there was a proviso to Section 15 prior to the amendment and the same came to be omitted by the amending Act of 1976. The proviso to the Section which was omitted by the amending 9/15 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.1592 of 2018 Act 1976 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 decree in the Court of the first instance. Hence the result of deleting the proviso is that the parties whose marriage is dissolved by a decree of divorce can contract marriage soon thereafter, but only after the period of appeal has expired. It is clear that the waiting period for remarriage has been reduced by the amendment which would only reveal the intention of the legislature to settle the rights of the husband and wife after divorce permanently at the shortest period of time.
13. In the case of Surendra Kumar vs. Krian Devi reported in AIR 1997 Rajasthan 63, the Rajasthan High Court has 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 relevant portions are extracted hereunder:
“6. It has not been disputed before me that after passing of the exparte decree in favour of the petitioner by the Dist. Judge on 11-8-1992, the petitioner contracted a second marraige after 10/15 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.1592 of 2018 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.”
14. A learned Judge of this Court, by referring to the decision of the Rajasthan High Court, in the case of A.Raja Sundari Vs. Suresh Kumar reported in AIR 2016 MADRAS 160, has observed 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. The above observation is squarely applicable to the case on hand also.
15. In the present case, as already pointed out, the respondent had 11/15 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.1592 of 2018 entered into the second marriage 21 months after dissolving of the first marriage. The Hon'ble Apex Court, in the case of Pasupuleti Venkateswarlu Vs. The Motor & General Traders reported in AIR 1975 SC 1409 has observed that 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 the sides are scrupulously obeyed.
16. As already pointed out, though the respondent has alleged that there occurred a delay of 1400 days, she has not chosen to canvass any explanation or cause for the delay of 1400 days which is inordinate and she has also not produced any evidence to prove the vague and bald reasons canvassed for the said delay. But the learned trial Judge, without considering the above factual aspects and legal position above referred in proper perspective, by simply observing that since the petition filed is for divorce and to solve the issues pending between both the parties, the case has to be decided by examining both parties, condoned the delay by imposing costs.
17. Considering the above facts and circumstances and taking note 12/15 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.1592 of 2018 of the fact that the right of the second wife of the petitioner had also intervened and also the fact that the respondent/wife has not assigned any valid or acceptable reason for the inordinate delay of 1400 days, this Court has no hesitation to hold that the impugned order condoning the delay cannot be sustained and as such, the impugned order is liable to be set aside.
18. In the result, the Civil Revision Petition is allowed and the impugned order dated 14.02.2018, passed in I.A.No.46 of 2017 in H.M.O.P.No.51 of 2012, on the file of the Subordinate Court, Theni, is set aside and the petition in I.A.No.46 of 2017 stands dismissed. Consequently, the connected Miscellaneous Petition is closed. There shall be no order as to costs.
26.04.2024
NCC : Yes : No
Index : Yes : No
Internet : Yes : No
SSL
To
1. The Subordinate Court, Theni.
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C.R.P.(MD)No.1592 of 2018
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P.(MD)No.1592 of 2018
K.MURALI SHANKAR,J.
SSL
PRE-DELIVERY JUDGMENT MADE IN
C.R.P.(MD)No.1592 of 2018
26. 04.2024
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