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2018 DIGILAW 1904 (RAJ)

Sunita v. Mukesh Panchariya

2018-09-12

PRADEEP NANDRAJOG, PUSHPENDRA SINGH BHATI

body2018
JUDGMENT : PRADEEP NANDRAJOG, J. 1. Heard learned counsel for the appellant. 2. The appellant and the respondent were married on 27.06.2010. The respondent sued for dissolution of the marriage on the ground of cruelty. The appellant could not be served and ultimately was served by affixation. Decree of divorce was granted on 27.10.2015. The appellant filed an application under Order 9 Rule 13 of the Code of Civil Procedure on 29.06.2017. In the application she admitted that she learnt about the ex-parte decree of divorce in the month of February, 2017 and applied for a certified copy of the same on 14.02.2017. Certified copy was issued by the copying agency on 27.03.2017. Thereafter she remained busy with the marriage of her brother which was fixed for 06.05.2017 and thereafter contacted the counsel on 24.06.2017 who drafted the application under Order 9 Rule 13 of the Code of Civil Procedure and filed the same in the Court. The respondent appeared and informed the Court that he had remarried on 28.06.2017. 3. Dismissing application filed by the appellant under Order 9 Rule 13 of the C.P.C. the learned Judge, Family Court has not adverted to whether service upon the appellant by affixation was justified or not. The learned Judge has noted case law on the point that where a party has solemnized a second marriage, issue concerning ex-parte decree has to be decided keeping in view the interest of the second wife. The learned Judge has noted the decision of the Supreme Court for the proposition that in proceedings before Courts, the Courts have to take conscious cognizance of the events and subsequent developments. 4. In the instant case the appellant admitted having knowledge of the ex-parte decree of divorce granted on 27.10.2015 in the month of February, 2017. She applied for a certified copy of the decree on 14.02.2017. It was made available to her on 27.03.2017. Her brother's marriage was fixed for 06.05.2017. She should have been vigilant to have filed the application under Order 9 Rule 13 of the C.P.C. within 30 days of knowledge of the ex parte decree. What has happened is, as noted above, the husband solemnizing the second marriage? 5. In view of the case law noted by the learned Judge, Family Court we find no infirmity in the impugned order and thus we dismiss the appeal in limine.