Research › Search › Judgment

Telangana High Court · body

2022 DIGILAW 332 (TS)

J. Shyam Babu v. J. Rajini Kumari

2022-04-29

A.VENKATESHWARA REDDY

body2022
ORDER : This Civil Revision Petition is filed by the petitioner under Article 227 of the Constitution of India assailing the impugned orders dated 01.11.2017 passed in I.A.No.602 of 2017 in F.C.O.P.No.503 of 2013 on the file of the XV Additional District & Sessions Judge-cum-II Additional Family Court, Kukatpally at Miyapur. 2. This application in I.A.No.602 of 2017 was filed by the petitioner/wife under Order IX, Rule 13 read with Section 151 of Civil Procedure Code (for short ‘CPC’) to set aside the ex-parte divorce order dated 09.03.2017. The trial Court, on careful appreciation of the facts, set aside the ex-parte decree by condoning 12 days of delay, as per the orders dated 22.06.2017 in I.A.No.601 of 2017. 3. Feeling aggrieved by the said orders, this CRP is filed alleging that the lower Court ought to have considered that the petitioner has already contracted second marriage, the same was informed to the Court and the validity of the second marriage is now in question, the lower Court ought to have considered that by virtue of ex-parte orders dated 09.03.2017 the marriage between the parties has been dissolved and that the petitioner has married one B.Sunitha on 18.04.2017 after expiry of mandatory period of appeal and the second marriage is valid. It is only thirty days period under Section 28 of Hindu Marriage Act to file an application to set aside the ex-parte decree but the respondent/wife has filed the application with a delay of 12 days and it was mechanically condoned. 4. Heard both sides. The submissions made on either side have received due consideration of this Court. Perused the record. 5. For the sake of convenience, the parties to this petition are hereinafter referred to as petitioner and respondent as they were arrayed in F.C.O.P.No.503 of 2013 before the trial Court. 6. The petitioner herein is the husband, he has filed FCOP No.503 of 2013 against his wife on the file of the XV Additional District and Sessions Judge-cum-II Additional Family Court, Kukatpally at Miyapur. It appears he has obtained ex-parte divorce dissolving the marriage dated 09.05.1997. 6. The petitioner herein is the husband, he has filed FCOP No.503 of 2013 against his wife on the file of the XV Additional District and Sessions Judge-cum-II Additional Family Court, Kukatpally at Miyapur. It appears he has obtained ex-parte divorce dissolving the marriage dated 09.05.1997. Wife has come to know about the ex-parte decree of divorce and she has immediately filed the application in I.A.No.601 of 2017 under Section 5 of Limitation Act to condone the delay of 12 days, whereas in I.A.No.602 of 2017 under Order IX, Rule 13 read with Section 151 of CPC to set aside the ex-parte decree, both the applications were allowed, delay was condoned and the ex-parte decree dated 09.03.2017 was set aside. 7. Assailing the orders in I.A.No.602 of 2017 the present civil revision petition is filed. It is pertinent to note that the husband did not challenge the orders in I.A.No.601 of 2017 wherein and where under 12 days of delay is condoned. In-fact consequent to the orders in I.A.No.601 of 2017, as delay is condoned, I.A.No.602 of 2017 was allowed and the ex-parte decree for divorce is set aside. 8. It is the case of the petitioner/husband that he has contracted second marriage on 18.04.2017 after expiry of 30 days period from the date of obtaining the divorce and that in such circumstances, setting aside the ex-parte decree of divorce creates legal issues and complications. Learned counsel for the petitioner has also relied upon the principles laid in the following decisions : (1) Dr.Lokeshwari Vs. Dr.Srinivasa Rao, 2000 (3) ALD 350 (DB). (2) A.Raja Sundari Vs. Suresh Kumar, AIR 2016 Madras 160 . (3) Vijayalakshmi Vs. Kannappan, 2009 CJ (Mad) 5695 9. I have carefully perused the principles laid in the above decision. The gist of the ratio laid in the above decisions is that when spouse has remarried after expiry of appeal time, filing of application by the first wife or husband, to set aside the ex-parte decree and allowing the same may defeat the intention of the legislature to settle the rights of the parties permanently after divorce at shortest period of time. 10. In this context, it is pertinent to note that it is not the case of the petitioner that his wife has resisted the divorce application. 10. In this context, it is pertinent to note that it is not the case of the petitioner that his wife has resisted the divorce application. In-fact, she remained absent and an ex-parte decree for divorce was granted and immediately when she has come to know about it she rushed to the Court and filed both the applications as stated above to condone the delay of 12 days and to set aside the ex-parte decree of divorce. The husband has not resisted the application in IA No.601 of 2017 filed under Section 5 of Limitation Act to condone the delay of 12 days but only filed this CRP challenging the order of setting aside the ex-parte decree. 11. Be it stated that the learned counsel for the respondent/wife seeks to submit that restriction of second marriage as contemplated under Section 15 of Hindu Marriage Act is not applicable in case if marriage was performed immediately after appeal time and that the ex-parte decree for divorce liable to be set aside and relied on the principle laid in Anurag Mittal Vs. Mrs.Shaily Mishra Mittal, AIR 2018 SC 3983 . Wherein on identical facts, the Apex Court has held that prior to the date of second marriage, the appeal is deemed to have been withdrawn and the second marriage cannot be declared as void merely because the ex-parte decree of divorce was set aside on an application filed by another spouse. 12. While dealing with the applications filed under Order IX Rule 13 of CPC, the Hon’ble Supreme Court in Parimal v. Veena @ Bharti, (2011) 3 SCC 545 , held thus: “Approach of the Court while dealing with such an application under Order IX Rule 13 C.P.C. would be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order IX Rule 13, the Court has no jurisdiction to set aside ex-parte decree. The manner in which the language of the second proviso to Order IX Rule 13 C.P.C. has been couched by the legislature makes it obligatory on the appellate court not to interfere with an ex-parte decree unless it meets the statutory requirement. It was not permissible for the High Court to take into consideration the conduct of the appellant subsequent to passing of the ex parte decree.” 13. It was not permissible for the High Court to take into consideration the conduct of the appellant subsequent to passing of the ex parte decree.” 13. It was a case in which the spouse who obtained the ex- parte decree had remarried. The Hon’ble Supreme Court declined to take into account the remarriage of the spouse as a relevant factor in deciding the merits of an application filed for setting aside the ex-parte decree of divorce. Accordingly, while seeking guidance from the above, I am of the firm view that mere remarriage of the petitioner-husband who obtained ex-parte decree of divorce will not render the application to set aside the ex-parte decree filed by the wife-opposite spouse infructuous. Re-marriage of the spouse is not a relevant factor to be taken into account in deciding the merits of the application filed for setting aside the ex-parte decree of divorce. The application under Order IX Rule 13 of the Code of Civil Procedure has to be considered on its own merits within the four corners of that provision. 14. In that view of the matter, since there are triable issues in the case on hand and immediately after the husband obtaining ex-parte divorce, the first wife has filed the present application, the trial Court has rightly considered and allowed the same condonoing the delay of 12 days only. I do not find any jurisdictional error committed by the Court below. 15 In the result, this CRP is dismissed confirming the impugned order dated 01.11.2017 passed in I.A.No.602 of 2017 in F.C.O.P.No.503 of 2013 on the file of the learned XV Additional District and Sessions Judge-cum-II Additional Family Court, Kukatpally at Miyapur. In the circumstances of the case, the parties shall bear their respective costs. Miscellaneous petitions, if any, pending, in this CRP, shall stand closed.