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2018 DIGILAW 749 (MP)

Rachna Bai v. Rajesh Kumar Mahore (Kori)

2018-08-30

ASHOK KUMAR JOSHI, SANJAY YADAV

body2018
ORDER 1. Present appeal, under section 19 of the Family Courts Act, is directed against the judgment and decree dated 13.5.2015 passed by the Principal Judge, Family Court, Ashok Nagar (M.P.) in Case No. 40A/2015 HMA whereby the suit filed by the respondent/husband under Section 13 of the Hindu Marriage Act, 1955, has been decreed. 2. One of the grounds raised by the appellant is that the suit has been decreed during the period when the proceeding of said suit was stayed by this Court by order dated 3.7.2013 passed in MCC No. 142/2013. 3. It is borne out from the record and not disputed by the parties that during the pendency of the case before the Family Court, the appellant filed an application under Section 24 of the Code of Civil Procedure, 1908, for transfer of the case from the Court of District Judge Ashok Nagar to Family Court, Gwalior (M.P.) wherein by order dated 3.7.2013 interim order to the following extent was passed : “Meanwhile till the next date of hearing, no adverse inference would be drawn or no adverse order would be made against the petitioner wife for her non appearance in Case No. 21-A/2013 HMA, Rajesh v. Smt. Rachna pending before the District Judge, Ashok Nagar till the next date of hearing.” 4. It is also not disputed by the learned counsel for the parties that the interim order was brought to the notice of the Court, which is evident from order-sheet dated 26.7.2013 of the Family Court. It is also not disputed that stay order was later on extended from time to time. It is contended that on 13.5.2015 during currency of the interim order dated 3.7.2013, the Presiding Judge, Family Court, Ashok Nagar (M.P.) proceeded to decree the suit. It is urged that said judgment and decree is a nullity as it was beyond the jurisdiction of the Family Court to have passed any order having adverse consequence. 5. In “Mulraj v. Murti Raghunathji Maharaj [ AIR 1967 SC 1386 ]”, it is held : “8. .....In the case of a stay order, as it is addressed to the Court and prohibits it from proceeding further, as soon as the Court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. .....In the case of a stay order, as it is addressed to the Court and prohibits it from proceeding further, as soon as the Court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. .......” 6. In view whereof as the judgment and decree dated 13.5.2015 suffers from lack of jurisdiction and is void ab initio, same cannot be allowed to sustain. Consequently, it is set aside. Matter is relegated to the Family Court, Ashok Nagar (M.P.) for its decision afresh on merits. 7. At this stage learned counsel for the appellant submits that marriage has broken irretrievably and there is no chance of reconciliation for the reason that respondent has solemnÁed second marriage. The matter may be finally settled at rest by this Court by allowing the parties to separate by fixing the permanent alimony under section 25 of the Hindu Marriage Act, 1955. Learned counsel for the appellant placed reliance on the decision of the Hon'ble Supreme Court in the case of “Jasbir Kaur v. Satbir Singh [ (2017) 11 SCC 166 ]” and “Jalendra Padhiary v. Pragati Chhotray [ AIR 2018 SC 2091 ]”. In Jasbir Kaur (supra), the Hon'ble Supreme Court as is evident from the verdict had directed the District Judge/Family Court, Jalandhar, Punjab to conduct the appropriate inquiry with regard to alimony and pass an order in that regard and also conclude the pending proceedings of maintenance within a period of three months whereas in the case of Jalendra Padhiary (supra), the matter was remanded to the Family Court to decide the quantum of payment of permanent alimony afresh. 8. In the present case, since we have set aside the judgment and decree dated 13.5.2015 passed by the Family Court and relegated the matter to it for decision of the matter afresh, parties are at liberty to take all such pleas before the Family Court, Ashok Nagar (M.P.) available to them under law. 9. Consequently, present appeal stands finally disposed of in above terms. 10. Parties to bear their respective costs.