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Denny Pazhoor vs Greeta Sunitha Vincent on 17 October, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940

Mat.Appeal.No. 923 of 2018

AGAINST THE COMMON ORDER DATED 25.07.2018 IN OP 527/2016 of FAMILY
COURT,ERNAKULAM

PETITIONER/APPELLANT:

DENNY PAZHOOR
AGED 38 YEARS
S/O JOSEPH, PAZHOOR HOUSE, THOPPIL ROAD,
THRIKKAKARA P.O., PIN – 682 021,

BY ADVS.
SRI.M.M.SAIDU MUHAMMED
SMT.REENA MATHEW (THEVALAKKATTU)

RESPONDENT/RESPONDENT:

GREETA SUNITHA VINCENT
AGED 29 YEARS
D/O LATE JOSEPH VINCENT, RM. NO. 102(W), KOLIWADA
ATMARAM APT,
2ND RABODI, MAHARASHTRA, MUMBAI- 400601.
PRESENTLY RESIDING AT 83A/FLAT 41,
NEAR DR. MORE CLINIC, YASHODA VRINDHAVAN SOCIETY,
THANE WEST, 400601

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08.10.2018,
THE COURT ON 17.10.2018 DELIVERED THE FOLLOWING:
C.K.ABDUL REHIM “CR”

R.NARAYANA PISHARADI, JJ.
**************************
Mat.Appeal No.923 of 2018
———————————————
Dated this the 17th day of October, 2018

JUDGMENT

R.Narayana Pisharadi, J

This appeal is filed challenging the common order dated

25.07.2018 passed by the Family Court, Ernakulam in the

applications I.A.No.37/2017 and I.A.No.38/2017 in

O.P.No.527/2016.

2. The appellant is the husband and the respondent is the

wife.

3. The appellant filed O.P.No.527/2016 in the Family Court

for granting a decree of divorce on the ground of cruelty. The

respondent was set ex parte in the case. An ex parte decree of

divorce was passed against her on 19.10.2016.

4. The respondent filed an application as I.A.No.37/2017 for

setting aside the ex parte decree passed against her. She also
Mat.Appeal No.923/2018
3

filed I.A.No.38/2017 for condoning the delay of 48 days in filing

the application for setting aside the ex parte decree. The

appellant filed counter affidavit opposing the applications. As per

the common order dated 25.07.2018, the Family Court allowed

both applications and set aside the ex parte decree passed

against the respondent. The husband has come up in appeal

challenging the aforesaid order.

5. We have heard learned counsel for the appellant.

6. The ex parte decree of divorce was passed against the

respondent on 19.10.2016. There was only a delay of 48 days in

filing the application for setting aside the ex part decree. The

respondent had pleaded before the lower court that she had

delivered a premature baby on 14.07.2016 in a hospital at Thane

through cesarean operation and she had to take rest for a period

of three months and therefore, she could not appear before the

Family Court on the date of hearing of the case. She also pleaded

that she could not travel and come to Ernakulam and contact her

lawyer. This resulted in the delay in filing the application for

setting aside the ex parte decree. She produced Ext.A1 medical
Mat.Appeal No.923/2018
4

certificate to prove the aforesaid plea.

7. The appellant had contended before the lower court that

the respondent was in Ernakulam till 29.09.2016 and nothing

prevented her from appearing before the Family Court on the

date of hearing of the case. The appellant further contended that

he had remarried on 12.07.2018 and therefore, the application

for setting aside the ex parte decree had become infructuous.

8. On the basis of Ext.A1 medical certificate produced by

the respondent, the Family Court was satisfied that she had

shown sufficient cause for the delay of 48 days in filing the

application for setting aside the ex parte decree. The Family

Court took note of the fact that the respondent had delivered a

premature baby on 14.07.2016 and for that reason, she could

not appear before the court on the date of hearing of the case.

We see no reason to find that the conclusions reached by the

Family Court in this regard are in any way illegal or improper.

Admittedly, the respondent is residing in Mumbai. There can be

no dispute with regard to the fact that she had delivered a

premature baby on 14.07.2016 in a hospital at Thane.
Mat.Appeal No.923/2018
5

Therefore, it is quite natural that she had to take rest for some

period after the delivery.

9. The fact that the respondent had come to Ernakulam on

29.09.2016 and gave complaint against the appellant to the

police does not necessarily mean that on the date of hearing of

the case she was in Ernakulam.

10. The appellant has raised a plea that he remarried on

12.07.2018 and therefore, the application filed by the respondent

for setting aside the ex parte decree had become infructuous.

11. In the instant case, the appellant had remarried on

12.07.2018. Admittedly, it was after receiving notice in the

application for setting aside the ex parte decree and during the

pendency of that application that the appellant remarried another

lady.

12. The question arises whether remarriage of the spouse

who obtained an ex parte decree of divorce, after the filing of the

application for setting aside the ex parte decree by the opposite

spouse would render such application infructuous.
Mat.Appeal No.923/2018
6

13. At this juncture, we may refer to Section 15 of the

Hindu Marriage Act, 1955 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”.

14. We also take notice of Section 57 of the Divorce Act,

1869 which reads as follows:

“57.Liberty to parties to marry again.– Where a
decree for dissolution or nullity of marriage has
been passed and either the time for filing the
appeal has expired without an appeal having
presented to any Court including the Supreme
Court or an appeal has been presented but has
been dismissed and the decree or dismissal has
become final, it shall be lawful for either party to
the marriage to marry again”.

15. The aforesaid provisions grant liberty to a spouse, who

has obtained a decree of divorce, to marry again after the expiry
Mat.Appeal No.923/2018
7

of the time for filing the appeal or when an appeal is filed, after

the dismissal of the appeal. Strictly speaking, these provisions do

not prohibit the spouse, who has obtained an ex parte decree of

divorce, to marry again before the expiry of the time for filing an

application to set aside the ex parte decree or during the

pendency of such an application filed by the opposite spouse.

However, on parity of reasoning and logic, judicial precedents

have made it clear that, the principle underlying the aforesaid

provisions also applies to an application for setting aside an ex

parte decree of divorce.

16. In Chandra Mohini Srivastava v. Avinash Prasad

Srivastava: AIR 1967 SC 581, the question arose as to

whether remarriage by the husband after the appellate decree

and during the pendency of an application for special leave to

appeal to the Supreme Court was legal and valid so as to revoke

the special leave granted to the wife and to dismiss the resultant

appeal as infructuous. It was a case under the Hindu Marriage

Act, 1955. It is to be noted that the provision contained in

Section 15 of that Act does not apply to an application for special
Mat.Appeal No.923/2018
8

leave to the Supreme Court. Dealing with the question, the Apex

Court held as follows:

“We are of opinion that special leave cannot be
revoked on grounds put forward behalf of the first
respondent. Section 28 of the Act inter alia
provides that all decrees and orders made by the
Court in, any proceedings under the Act may be
appealed from under any law for the time being in
force, as if they were decrees and orders of the
Court made in the exercise of its original civil
jurisdiction. Section 15 provides that “when a
marriage has been dissolved by a decree of divorce
and 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 dismissal, it shall be lawful for either
party to the marriage to marry again.” These two
sections make it clear that where a marriage has
been dissolved, either party to the marriage can
lawfully marry only when there is no right of appeal
against the decree dissolving the marriage or, if
there is such a right of appeal, the time for fling
appeal has expired without an appeal having been
presented or if an appeal has been presented it has
been dismissed. It is true that Section 15 does not
Mat.Appeal No.923/2018
9

in terms apply to a case of an application for
special leave to this Court. Even so, we are of
opinion that the party who has won in the High
Court and got a decree of dissolution of marriage
cannot by marrying immediately after the High
Court’s decree and thus take away from the losing
party the chance of presenting an application for
special leave. Even though Section 15 may not
apply in terms and it may not have been unlawful
for the first respondent to have married
immediately after the High Court’s decree, for no
appeal as of right lies from the decree of the High
Court to this Court in this matter, we still think that
it was for the first respondent to make sure
whether an application for special leave had been
filed in this Court and he could not by marrying
immediately after the High Court’s decree deprive
the appellant of the chance to present a special
leave petition to this Court. If a person does so, he
takes a risk and cannot ask this Court to revoke the
special leave on this ground.”

17. Chandra Mohini (supra) was followed by the Apex

Court in Tejinder Kaur v. Gurmit Singh: AIR 1988 SC 839 and by

this Court in Suhasini Devi v. Padmanabhan: 1989 (1) KLT 658

and Suchithra v. Anil Krishnan : 2007 (2) KHC 680.
Mat.Appeal No.923/2018
10

18. In Vathsala v. Manoharan : AIR 1969 Mad 405, the

question arose whether a second marriage contracted by the wife

during the pendency of the application filed by the husband for

setting aside the ex parte decree of divorce would make that

application infructuous. Relying upon Chandra Mohini (supra),

the Madas High Court held as follows:

“What appears to me is that when an order of
nullity of marriage is made and the law allows
an appeal as well as an application to set aside
an ex parte order and actually these remedies
have been resorted to, any act of the parties
pending final disposal of those remedies availed
of cannot have the effect of rendering them
infructuous, so to speak. Where such remedies
are provided from an order, the order should be
taken to be valid and in force, but only subject
to the result of the application to set aside the
ex parte order or the result in the appeal. To
hold otherwise would mean that by an act of
the party, he can successfully defeat the lawful
remedy accorded to the aggrieved person. It is
true the filing or pendency of an application to
set aside an ex parte decree or an appeal does
not work as an automatic reversal of the order.

But once an application is allowed and the ex
Mat.Appeal No.923/2018
11

parte order is set aside, the order passed in
such an application re-opens the trial, or if the
appeal is allowed, the order made in the appeal
should be taken to be the order that should
have been passed at the trial”.

19. There is cleavage of opinion among the High Courts on

the issue. One line of thinking is that the interest of a third party

is intervened on account of remarriage of the spouse who

obtained the ex parte decree of divorce and that the interest of

that party has also to be taken into account by the court and

therefore, the remarriage renders the application for setting

aside the ex parte filed by the opposite spouse infructuous. Some

of the High Courts also take the view that subsequent events

shall be taken note of by the court in deciding an application for

setting aside an ex parte decree of divorce (See S.P. Srivastava v.

Prem Lata Srivastava :AIR 1980 All 336, Harjeet Singh v. Guddi:

1987 (2) Hindu Law Reporter 24, Babita Laul v. Vijay

Laul:MANU/PH/0642/2009,Jharna Rani Ghosh v. Prabir Kumar

:MANU/WB/1363/2014 and Raja Sundari v. Suresh Kumar :AIR

2016 Mad 160).

Mat.Appeal No.923/2018
12

20. The other line of thinking is that remarriage of the

spouse cannot defeat the right of the opposite party and when

sufficient ground is established for setting aside the ex parte

decree, that relief cannot be denied merely on the ground of

remarriage of the spouse who obtained the ex parte decree.

Relying upon Chandra Mohini (supra), many High Courts have

taken the view that the principles underlying Section 15 of the

Hindu Marriage Act, on parity of reasoning, can be extended to

proceedings for setting aside ex parte decree of divorce, which is

a remedy lawfully available to a spouse aggrieved by such decree

(See S.K. Bose v. Premi Bose: I (1992) DMC 506, Sadan Kumar

Chaurasia v. Indira Bai Sadan Kumar: 1997 (1) MPLJ 124,

Mukesh Kumar Richariya v. Smt. Madhu Richar: II (2001) DMC

187, Kuldip Kumar Lal v. Suman Rani: AIR 2012 Raj 175, Manish

Soni v. Usha Soni: MANU/RH/0297/2013 and Maganti Krishna

Durga v.Maganti Anil Kumar: MANU/AP/0211/2015).

21. However, the preponderance of view is that remarriage

of the spouse who obtained the ex parte decree of divorce will

not render the application filed by the opposite spouse for setting
Mat.Appeal No.923/2018
13

aside the ex parte decree infructuous and that the application in

that regard has to be considered on its own merits

notwithstanding the remarriage.

22. In Bhagyalakshmi v. Balamani (judgment dated

22.05.13 in Mat.Appeal.No. 133 of 2012), the ex parte decree of

divorce was passed on 17.06.2011. Remarriage of the spouse

was on 14.10.2011. As per order dated 22.11.2011, the Family

Court dismissed the application for setting aside the ex parte

decree for the reason that the husband had remarried on

14.10.2011. A Division Bench of this Court held that such a

development which took place subsequent to the ex parte

decree, cannot by itself, determine the fate of the application for

setting aside the ex parte decree and that the view taken by the

Family Court is untenable.

23. We may also take note that remarriage of the party who

obtained a decree of divorce, before the expiry of the period

prescribed for filing appeal or after filing the appeal, does not

render the appeal infructuous (See Lata Kamat v. Vilas : AIR

1989 SC 1477, Suchitra v. Anil Krishnan: 2007 (2) KHC 680,
Mat.Appeal No.923/2018
14

Rajeshwari v. Jugal Kishore Gupta : AIR 1990 MP 217,

Kadambani Sahu v. Reshamlal Sahu : AIR 1990 MP 150 and

Vimlesh v. Prakash Chand Sharma : AIR 1992 All 260).

24. At this juncture, we shall advert to the decision of the

Supreme Court in in Parimal v. Veena @ Bharti :AIR 2011 SC

1150. It was a case in which the spouse who obtained the ex

parte decree had remarried. The Supreme Court did not take into

account the remarriage of the spouse as a relevant factor in

deciding the merits of an application filed for setting aside an ex

parte decree of divorce. The Apex Court 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” (emphasis supplied).

Mat.Appeal No.923/2018
15

The Apex Court has also held as follows:

“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”.

25. Taking cue from the decision of the Supreme Court in

Parimal (supra), we are of the firm view that remarriage of the

spouse who obtained the ex parte decree of divorce will not

render the application for setting aside the ex parte decree filed

by the opposite spouse infructuous. Remarriage of the spouse is

not a relevant factor to be taken into account in deciding the

merits of an application filed for setting aside an 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.

26. In the instant case, the appellant had remarried after

he received notice in the application filed by the respondent for

setting aside the ex parte decree of divorce and during the

pendency of the application. Remarriage of the appellant had not

rendered the application filed by the respondent for setting aside
Mat.Appeal No.923/2018
16

the ex parte decree of divorce infructuous.

27. The lower court has observed that remarriage of the

appellant would amount to bigamy. Learned counsel for the

appellant submitted that this observation made by the lower

court is wrong and unwarranted. We find force in this submission.

28. The following ingredients are necessary to constitute

bigamy: (1) the accused must have contracted first marriage; (2)

he must have married again; (3) the first marriage is subsisting

at the time of the second marriage and (4) the spouse must be

living. Insofar as the present case is concerned, the remarriage

of the appellant was on 12.07.2018. On that date, the marriage

of the appellant with the respondent was not subsisting by virtue

of the ex parte decree of divorce granted in his favour. A decree

of divorce, though passed ex parte against a spouse, breaks the

marital tie. Till the time it is set aside in appeal or in an

application filed under Order IX Rule 13 of the Code of Civil

Procedure or other appropriate proceeding, the dissolution of the

marriage stands. An incapacity for second marriage for a certain

period does not have effect of treating the former marriage as
Mat.Appeal No.923/2018
17

subsisting. Therefore, it cannot be found that remarriage of the

appellant amounts to bigamy.

29. However, we find no illegality or impropriety in the order

passed by the lower court setting aside the ex parte decree of

divorce passed against the respondent, after condoning the delay

of 48 days in filing the application in that regard.

Consequently, we dismiss the appeal. No costs.

(sd/-)
C.K.ABDUL REHIM, JUDGE

(sd/-)
R.NARAYANA PISHARADI, JUDGE
jsr/17/10/18

True Copy

PS to Judge

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