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2012 DIGILAW 1537 (BOM)

Kishore @ Sundar v. Archana

2012-08-13

S.S.SHINDE

body2012
Judgment : Rule. Rule made returnable forthwith. Heard finally with consent of the parties. 2. This Civil Revision Application takes exception to the judgment and order dated 17th February, 2012 passed by the District Judge, Dhule below Exhibit-17 in Civil Appeal No. 96 of 2007. 3. It is the case of the revision applicant that, the applicant is the original petitioner having filed Hindu Marriage Petition No. 96 of 2007 in the Court of the Civil Judge, Senior Division, Dhule for annulment of marriage under Section 12A of the Hindu Marriage Act. It is the case of the revision applicant that, the marriage of the applicant was performed with the respondent on 22nd May, 2003 at village Bhanashiwara, Taluka Newasa District Ahmednagar. Since the first day of marriage, the respondent refused to have sexual intercourse with the applicant. The respondent never attained menses. In spite of such a deformity and situation, the applicant extended his co-operation to the respondent and took the respondent to Dr. Mrs. Jagtap to provide her the medical treatment. “According to the revision applicant, the respondent had suppressed the fact that, she had no menses. In the situation due to impotency of the respondent, the marriage has not been consummated. Since the month of June, 2004, the respondent had deserted the applicant. The revision applicant had issued a notice to the respondent on 7th December, 2004, but nothing has come out. The respondent though duly served, and appeared through her Advocate, did not file the written statement. It is further case of the revision applicant that, by the amendment, the grounds for nullity of marriage have been raised in the petition. By filing the written statement to the amendment, the contention has been raised that, she was subjected to cruelty by the applicant and his family members and unlawful demand of Rs.10,000/-was made to her. It is the case of the revision applicant that, according to the respondent, on 18th November, 2004 the petitioner dropped at her parental home and insisted for the amount of Rs.10,000/-, the respondent desired to cohabit with the applicant. It is the case of the revision applicant that, in reply notice by the applicant to the respondent, Exhibit-45 it is specifically contended that the marriage between the applicant and respondent has not been consummated. It is the case of the revision applicant that, in reply notice by the applicant to the respondent, Exhibit-45 it is specifically contended that the marriage between the applicant and respondent has not been consummated. It is further case of the applicant that, in Hindu Marriage Petition No. 96 of 2007, the applicant had moved an application Exhibit-23 seeking medical check up of the respondent, through the Civil Surgeon, Dhule as the Court Commissioner. The application Exhibit-23 was allowed by the Court and the Civil Surgeon, Ahmednagar was appointed as Court Commissioner for medical check up. It is further case of the applicant that, the applicant sought modification in the order passed below Exhibit-23 by way of filing application at Exhibit-33 and as per order below Exhibit-33, the respondent was directed to appear before the Court. It is further case of the applicant that, there is communication at Exhibit-38 from the Civil Surgeon, Dhule that the respondent did not appear before him for medical check up. On 20th December, 2008 the respondent appeared in the Court and filed an application at Exhibit-39 contending that, she is ready to appear before the Civil Surgeon. The said application has been disposed of with direction to the respondent to appear before the Civil Surgeon for medical check up, however, there is no record to show that, the respondent/wife has complied with the said orders. It is further case of the applicant that, thereafter, the evidence of the applicant was adduced and has gone unchallenged, as there is no cross examination on behalf of the respondent. The Civil Judge, Senior Division, Dhule has been pleased to allow the H.M.P. No. 96 of 2007 on 15th September, 2007 and thereby declared that, the marriage between the applicant and the respondent is void and the same has been annulled by a decree of nullity. It is further case of the revision applicant that, as per the provisions of section 28 of the Hindu Marriage Act, the period of limitation provided for filing appeal is 30 days from the date of decree. The respondent was aware about the judgment and decree passed by the Court in H.M.P. No. 96 of 2007. On 21st February, 2010 the applicant verified and got confirmed that, the judgment, order and award passed in H.M.P. No. 96 of 2007 has not been challenged by way of filing the appeal. The respondent was aware about the judgment and decree passed by the Court in H.M.P. No. 96 of 2007. On 21st February, 2010 the applicant verified and got confirmed that, the judgment, order and award passed in H.M.P. No. 96 of 2007 has not been challenged by way of filing the appeal. On 22nd February, 2010 the applicant got married. It is the case of the applicant that, the present respondent had filed Misc. Civil Application NO. 106 of 2010 before the District Judge, Dhule for condonation of delay of 338 days in filing the appeal. On 23rd June, 2011 the learned District Judge, Dhule has been pleased to allow the Misc. Civil Application No. 106 of 2010 and thereby condoned the delay and directed that the appeal be registered and numbered. Pending the First Appeal No. 65 of 2010 in the Court of District Judge, Dhule, the present revision applicant filed the application at Exhibit-17 for framing preliminary issue as to whether the appeal is maintainable in view of the fact that the applicant has married on 22nd February, 2010. The learned District Judge, Dhule has been pleased to reject the application at Exhibit-17 and held that, the appeal is maintainable on its own merit. Hence this Civil Revision Application.” 4. The learned Counsel appearing for the revision applicant submits that, on 15th September, 2009 the Civil Judge, Senior Division, Dhule has been pleased to allow the H.M.P. No. 96 of 2007 and thereby declared that, the marriage between the revision application and the respondent is void and the same has been annulled by a decree of nullity. It is submitted that, as per the provisions of section 28 of the Hindu Marriage Act, the period of limitation provided for filing the appeal is 30 days from the date of decree. The respondent-wife was aware about the judgment and decree passed by the Court in H.M.P. No. 96 of 2007. It is further submitted that, on 21st February, 2010 the revision applicant herein, verified and got confirmed that, the judgment, order and award passed in H.M.P. No. 96 of 2007 has not been challenged by way of filing the appeal. The revision applicant got married on 22nd February, 2010. “It is further submitted that, the respondent filed Misc. Civil Application NO. The revision applicant got married on 22nd February, 2010. “It is further submitted that, the respondent filed Misc. Civil Application NO. 106 of 2010 before the District Judge, Dhule for condonation of delay of 338 days in filing the appeal challenging the judgment and decree in H.M.P. No. 96 of 2007. It is further submitted that, the Court allowed the application for condonation of delay and directed that, the appeal be registered and numbered. The revision applicant herein, in the pending First Appeal No. 65 of 2010 before the District Judge, Dhule, filed application at Exhibit-17 for framing preliminary issue as to whether the appeal is maintainable in view of the fact that the applicant has remarried on 22nd February, 2010. It is submitted that, the appellate Court ought to have allowed the application of the revision applicant in view of the provisions of section 15 of the Hindu Marriage Act. It is submitted that, the applicant waited for long time from 15th September, 2009 to 22nd February, 2010 and thereafter, on 22nd February, 2010 performed the marriage, after confirming that, no appeal has been filed during the period of limitation. It is submitted that, decree of nullity of marriage has been acted upon as it is executed and in these circumstances, after the marriage of the applicant, after declaration that, he has no marriage tie in existence, the cause does not survive for filing of appeal, as such the appeal has become not maintainable as well as infructuous. It is submitted that, in pursuance to the decree for nullity, if the applicant married and when there was no hurdle or impediment in the said marriage of the applicant, now cause would not survive to adjudication in the appeal. It is submitted that, decree of nullity for the purpose of effect and execution stands at par with the decree for divorce under section 13 of the Hindu Marriage Act. It is submitted that, in such situation, provisions of Section 15 of the Hindu Marriage Act would come in play, thereby there is a right in the person/spouse to get remarried in case, if there is an appeal and the time for filing the appeal has been expired. It is further submitted that, the decree for nullity of marriage stands on a better footing than a decree for divorce. It is further submitted that, the decree for nullity of marriage stands on a better footing than a decree for divorce. It is further submitted that, Orissa High Court in the case of SabitriSenapati vs. Jesh Family Court, Cuttack reported in AIR 2004, Orissa 75 as well as as well as Andhra Pradesh High Court in the case of Dr. Lokheshwari vs. Dr. Shrinivasrao reported in AIR 2000 Andhra Pradesh, 451, have taken a view that, if the husband contracting second marriage after expiry of appeal period. Filing of appeal beyond said period is not maintainable, so also, would be barred by limitation. Therefore, the learned Counsel appearing for the petitioner relying upon the grounds taken in the civil revision application, annexures thereto, judgment of the Orissa High Court and Andhra Pradesh High Court, would submit that, this civil revision application deserves to be allowed. Alternatively, the Counsel for the revision applicant submits that, if this Court is not inclined to accept the contention of the applicant, in that case, it may be left open to the revision applicant to agitate the point before the appellate Court about the maintainability of the appeal.” 5. On the other hand, the learned Counsel appearing for the respondent-wife invited my attention to the reasons recorded by the appellate Court and expositions of the Supreme Court, this Court and the Kerala High Court and submits that, the view taken by the appellate Court is in consonance with the law laid down by the Supreme Court, also by this Court and the Kerala High Court and therefore, this Court may not interfere in the impugned judgment and order. It is further submitted that, delay in filing the appeal is already condoned and therefore, the appeal will have to be heard on merits. Therefore, learned Counsel submits that, the civil revision application may be dismissed. 6. I have given due consideration to the rival submissions. I have also considered the judgment of the Orissa High Court and Andhra Pradesh High Court cited supra,by the Counsel for the revision applicant. However, I am bound by the judgment of this Court in the case of Jayashreew/o Vilas Bhole vs. Dr. Vilas Pundlikrao Bhole reported in 2007(1) BCJ 582, in which, view is taken by this Court that, the second marriage of husband cannot be accepted to be ground to confirm the decree of dissolution of marriage. However, I am bound by the judgment of this Court in the case of Jayashreew/o Vilas Bhole vs. Dr. Vilas Pundlikrao Bhole reported in 2007(1) BCJ 582, in which, view is taken by this Court that, the second marriage of husband cannot be accepted to be ground to confirm the decree of dissolution of marriage. Apart from the above, in paragraph-11 of the impugned judgment, the appellate Court has considered the decision of the Kerala High Court in the case of S.V. Suhasini Devi and another vs. Padmanabhan Madhavan reported in AIR 1989 Kerala 314 and also the judgment of the Madhya Pradesh High Court in the case of RekhaVs. Ravindra Kumar reported in 1994(1) Civil LJ 61, also the judgment of the Supreme Court in the case of TejanderKaur vs. Gurveer Singh reported in AIR 1988 SC 839 and Smt. Lata Kamath vs. Vilas Reported in AIR 1989 SC 1477 : 1989(2) Civil LJ 344 (SC) in paragraph-12 of the impugned judgment and rejected the application filed by the applicant-husband. It is not necessary to reiterate or reproduce the findings recorded by the appellate Court, since this Court is in complete agreement with those findings. The Supreme Court in the case of TejanderKaur (supra) held that, "the Legislature in its wisdom has enacted Section 28 conferring a right of appeal, which is unqualified, and not depending on the mercy or desire of a party, against all decrees in any proceeding under this Act which will include a decree under Sections 11,12 or 13 and therefore the only interpretation which should be put on the language of Section 15 should be that it will be consistent with Section 28." 7. The learned Counsel for the respondent has pressed into service various exposition. (1) Kunnarath Yesoda Vs. Manathanath Narayanan [AIR 1985 Kerala 220], (2) Tejinder Kaur vs. Gurmit Singh [AIR 1988 SC 829] (3) S.V. Suhasini Devi and another vs. Padmanabhan Madhavan [AIR 1989 Kerala 314(1)], (4) Lata d/o Shrikrishna Kamat vs. Vilas Bhalchandra Udhoji [1989 Mh.L.J. 616] and (5) Savitri Pandey vs. Prem Chandra Pandey [ 2002(6) Bom.C.R. 511 ]. Full Bench of Kerala High Court in the case of KunnarathYesoda vs. Manathanath Narayanan reported in AIR 1985 Kerala 220, held that, after the decree has been passed or order has been made and remain so closed for over 30 days therefrom. Full Bench of Kerala High Court in the case of KunnarathYesoda vs. Manathanath Narayanan reported in AIR 1985 Kerala 220, held that, after the decree has been passed or order has been made and remain so closed for over 30 days therefrom. Section 15 only declares that it shall be lawful for either party to the marriage to marry again under certain circumstances. From this it does not follow that a right to remarry enures automatically after the expiry of 30 days from the date of the decree of divorce. If an appeal is presented, one will have to wait till it is dismissed. If there is a right of appeal, the time for filing the appeal should have expired without the appeal being filed, taking into consideration the time required for obtaining the certified copy. The period for filing the appeal does not expire if once the delay in filing the appeal is condoned. The computation of time under S. 10 of the General Clauses Act, 1897 when the court or office is closed also extends the time beyond 30 days. Thus S. 15, on its face, indicates that it is not the legislative intention that a right to remarry arises exactly after 30 days of the decree of divorce. The aforesaid judgment is the judgment of the Full Bench of Kerala. The Supreme Court in the case of SavitriPandey (supra) while interpreting Section 13 and 28(4) of Hindu Marriage Act, 1955 held that, period of 30 days provided for appeal, appears to be too short. 8. Therefore, in my considered opinion, viewed from any angle, impugned judgment and order passed by the appellate Court is in consonance with the law laid down by this Court and also by the Full Bench of Kerala High Court and also the judgments of the Supreme Court cited supra. The present case stands on different footing on facts for the reason that, if the appeal is not decided on merits and if the decree is confirmed only because the husband has performed the second marriage, it will affect not only status of appellant as wife, but as the decree is on the ground of impotency, such decree will also affect upon the prospects of her second marriage and in such situation, there will be irreparable loss to the respondent-wife if the appeal is not decided on merits. Such findings have been recorded by the appellate Court in paragraph-15 of the impugned judgment. 9. Therefore, for the reasons aforesaid, I do not find any reason to interfere in the impugned judgment and order which is assailed in this Civil Revision Application. Hence, the Civil Revision Application stands rejected. Rule stands discharged. 10. Alternate prayer of the revision applicant to allow him once again to agitate same issue which is agitated by way of filing present proceedings about maintainability of appeal at the time of final hearing of appeal before the appellate Court, cannot be allowed, since once having been decided the said point on merits. Therefore, such prayer of the revision applicant also stands rejected.