Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 355 (ORI)

Binaya Bhusan Pattnaik v. Sujata Pattnaik

2013-08-30

S.K.MISHRA

body2013
JUDGMENT S.K. Mishra, J. In this writ petition, the order dated 11.01.2011 passed by the learned Ad hoc Addl. District Judge, F.T.C. No. II, Bhubaneswar in C.R.P. No. 5/13 of 2007 is called in question. While disposing of the said revision, the learned Addl. District Judge confirmed the order dated 10.05.2007 passed by the learned Civil Judge (Senior Division), Bhubaneswar in I.A. No.335 of 2003, whereby the Civil Judge (Senior Division) has allowed the application under Order IX, Rule 13 of the Code of Civil Procedure, 1908, hereinafter referred as the “Code” for brevity, filed by the present opposite party and set aside the decree dated 14.02.2001 and restored the suit to the original position. 2. The present petitioner filed an application for dissolution of marriage and decree of divorce before the learned Civil Judge (Senior Division), Bhubaneswar, which was registered as C.S. No.83 of 1998. The said suit was decreed ex parte on 07.02.2001. The present opposite party filed an application under Order IX Rule 13 of the Code to set aside the ex parte order. In that petition, she averred that she had married the present petitioner on 15.04.1993. Five years after marriage in 1998, the petitioner drove her out of the marital home and avoided to take her back on some pretext or other. In May, 2003, the opposite party came to know that the petitioner is trying to marry for the second time, for which she lodged a complaint on 29.05.2003 before the Mahila Police Station. During enquiry, the petitioner showed an ex parte decree of divorce dated 07.02.2001 passed by the learned Civil Judge (Senior Division), Bhubaneswar in C.S. No.83 of 1998, for which police did not lodge the F.I.R. On verification of the record, the present opposite party (wife) came to know that the petitioner had intentionally given a wrong address in the petition for divorce. Taking advantage of such wrong address, the petitioner has managed to obtain a decree fraudulently. After coming to know about such information, the opposite party filed the application under Order IX, Rule 13 of the Code on 23.06.2003 for setting aside the ex parte judgment. 3. The petitioner (husband) filed objection in the said interim application contending therein that the address given by the opposite party in the original suit is correct and the opposite party is not residing in Chintamaniswar Canal Colony. 3. The petitioner (husband) filed objection in the said interim application contending therein that the address given by the opposite party in the original suit is correct and the opposite party is not residing in Chintamaniswar Canal Colony. It is further contended that the opposite party avoided to take delivery of summons, for which the summons was held sufficient on 10.09.1999 and she was set ex parte. Subsequently, the notice was published in “The Pragatibadi” on 25.04.2000 and the same was held sufficient vide order dated 08.05.2000. In spite of such service of notice, the opposite party did not contest and the petitioner married for the second time on 25.11.2001, which was known to the opposite party and her relations. The present petitioner claimed that a petition to set aside the ex parte decree has been filed with an intention to harass the petitioner. 4. On such pleadings, the parties led evidence. Learned Civil Judge (Senior Division), Bhubaneswar, after taking into consideration the evidence led by the parties, came to the conclusion that the summons was not duly served on the opposite party (petitioner before him) in the original suit and there is sufficient cause for setting aside the ex parte decree passed in favour of the opposite party (wife). The learned Civil Judge (Senior Division) on elaborate discussion has given his finding that the address given in the petition for divorce is not correct. Therefore, the service of summons on the opposite party cannot be held to be sufficient. Such factual finding has been confirmed by the learned Addl. District Judge in his judgment dated 11.01.2011. Such being the case, the appellate court has also held that the petitioner has failed to prove that service of notice was sufficient on the opposite party (wife) and therefore, the same was set aside. Such orders passed by the learned Civil Judge (Senior Division) and confirmed by the learned Addl. District Judge have been assailed in this writ petition. 5. Learned counsel for the petitioner fairly conceded that he does not want to argue on the question of concurrent findings of fact. Such orders passed by the learned Civil Judge (Senior Division) and confirmed by the learned Addl. District Judge have been assailed in this writ petition. 5. Learned counsel for the petitioner fairly conceded that he does not want to argue on the question of concurrent findings of fact. He, by drawing attention of the Court to Section 15 of the Hindu Marriage Act, submits that the petition for setting aside the ex parte decree is not maintainable in view of the fact that the petitioner has married for the second time after expiry of the period of appeal and has already been blessed with a child. It is apposite to take note of the Section 15 of the Hindu Marriage Act, 1955, hereinafter referred as the “Act” for brevity, which reads as follows: “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. Taking into consideration, Section 15 of the Act, Rajasthan High Court in the case of Surendra Kumar v. Kiran Devi, AIR 1997 Rajasthan 63 has held that the application by the non-petitioner is not maintainable in view of the fact that the period for appeal has already expired by the time the wife filed an application for setting aside the ex parte decree. Learned counsel for the opposite party, on the other hand, relies on the case of Dr. Mithilesh Kumar Srivastava v. Smt. Saroj Kumar Srivastava, reported in I (1987) DMC 324. The Allahabad High Court after taking into consideration a number of decisions came to the conclusion that a petition under Order IX, Rule 13 of the Code is maintainable. After having gone through the case, this Court comes to the conclusion that to the facts of the present case, the ratio laid down by the learned Single Judge of the Allahabad High Court in Dr. Mithilesh Kumar Srivastava v. Smt. Saroj Kumar Srivastava (supra) is applicable. In that case, the Allahabad High Court has held that the ex parte decree was obtained by practicing fraud. Mithilesh Kumar Srivastava v. Smt. Saroj Kumar Srivastava (supra) is applicable. In that case, the Allahabad High Court has held that the ex parte decree was obtained by practicing fraud. So the applicant, who has obtained the same by misrepresentation, cannot be allowed to deprive the advantage out of it. The fact of the case is similar to the present one. In this case, the petitioner (husband) has deliberately given a wrong address in the petition for divorce and obtained an ex parte decree against his wife. There is element of fraudulent misrepresentation in this case. It is well settled that fraud or fraudulent misrepresentation vitiates every solemn act. Therefore, the Court is of the opinion that in such an event, an application under Order IX, Rule 13 of the Code is maintainable and the learned Addl. District Judge has committed no wrong in upholding the orders passed by the learned Civil Judge (Senior Division), Bhubaneswar on an application under Order IX, Rule 13 of the Code. In such premises, the writ application is dismissed being devoid of merit, but without any cost. Application Dismissed