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Tejas Jayendrakumar Kothari vs Shivangi Pankajbhai Bhatt on 9 October, 2018

C/CRA/460/2016 CAV ORDER





MR SHIVANG M SHAH(5916) for the RESPONDENT(s) No. 1


Date : 09/10/2018


Invoking the jurisdiction of this Court
under Article 227 of the Constitution, the
petitioner-husband has filed the present petition
seeking to set aside order dated 08th September, 2016
below Exh.73 passed by leaned Principal Senior Civil
Judge, Kalol in Hindu Marriage Petition No.46 of
2009. By the said application, what was prayed before
the court below was to allow the Hindu Marriage
Petition, which prayer was rejected and that has
resulted into the present Revision Application.

2. Stating the gist of application Exh.73 and
the prayer therein, it was submitted by the
petitioner-applicant that since he had re-married
after the ex-parte decree of divorce dated 11th
February, 2010 passed in his Hindu Marriage Petition
(HMP), leading to irreversible situation, the HMP was

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C/CRA/460/2016 CAV ORDER

required to be allowed.

3. The attendant facts are that the marriage
between the petitioner-husband and the respondent-
wife was solemnised on 26th January, 2008. On 19th
September, 2009 petitioner-husband filed HMP No.46 of
2009 seeking divorce on the ground of cruelty.
According to the say of the petitioner-husband, in
May, 2008 the wife had left the matrimonial home out
of her own volition, whereafter on account of the
intervention of the elder family members, the spouses
stayed together till 08th June, 2008 at Ahmedabad,
but, as the case of the husband runs, the wife again
left the matrimonial house on 04th July, 2008.

3.1 The aforesaid HMP filed by the husband came
to be allowed ex parte on 11th February, 2010 and the
decree of divorce was drawn. The petitioner-husband
re-married on 21st May, 2010. According to the
respondent-wife, she came to know on 19th July, 2010
about the ex parte decree in course of another
collateral proceedings pending between the parties
under the Domestic Violence Act, 2005, when the
divorce decree was produced in the said proceedings.
On 11th August, 2010, the wife filed application to
set aside the ex parte decree and to condone the

3.2 The application to set aside the decree was
allowed on 10th May, 2011. The decree for divorce
which was passed, came to be set aside and the HMP
was restored to file. The said HMP is presently

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C/CRA/460/2016 CAV ORDER

pending. On 16th April, 2016 application Exh.73 was
given by the petitioner-husband, in which it was
stated the petitioner had re-married and two children
were born out the settlement. It was prayed therefore
to allow the HMP. The rejection of the said prayer is
the order impugned herein.

3.3 In application Exh.73, the case of the
petitioner was that the second marriage was
contracted after the statutory period of appeal was
over and that the respondent-wife was within the
knowledge about the second marriage of the
petitioner. The knowledge of the respondent-wife was
sought to be attributed on the basis that wife had
initiated the proceedings under the Domestic Violence
Act as well as had filed criminal complaint. It was
the case and contention that the judgment and decree
for divorce having been passed on 11th February, 2010
and since the statutory period for preferring appeal
was over, as envisaged under Section 15 of the Hindu
Marriage Act, 1955, it was permissible and legal for
the petitioner to re-marry.

3.4 The petition was contested by the
respondent-wife, who in her affidavit-in-reply,

contended that the conduct on part of the petitioner-
husband in obtaining ex parte decree of divorce was
fraudulent, that the decree was obtained behind the
back and it was in absence of proper service of
summons of the proceedings. It was stated that
thereafter application to set aside ex parte decree
was allowed by the Court on 10th May, 2011, which

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C/CRA/460/2016 CAV ORDER

order was biding to the petitioner. The respondent
mentioned in her affidavit-in-reply, the proceedings
initiated under the Domestic Violence Act, 2005 in
view of physical and mental torture and to have
social protection and that the Criminal Appeal in
that regard is pending. Also referred to was the
filing of criminal complaint under Section 498A of
the IPC. It was contended that the trial court had
rightly come to conclusion that the petitioner failed
to show any provision of law under which the
application below Exh.73 and the prayer made therein
could be maintained.

4. Heard learned advocate Mr.Rajesh Savjani for
the petitioner and learned advocate Mr.Hriday Buch
who appeared for learned advocate Ms.Dhara M. Shah
for the respondent.

4.1 It was submitted by learned advocate for the
petitioner that the statutory period was over when
the second marriage was contracted by the petitioner.
It was submitted on the basis of the aspects that the
proceedings under the domestic violence law was
initiated on 21st June, 2010, that HMP No.20 of 2010
came to be filed by the wife on 11th August, 2010 for
setting aside the ex parte decree, that complaint was
also filed on 06th October, 2010 against the family
members of the husband under Section 498A, which went
to show that the wife had knowledge of the passing of
the decree and the event of second marriage of the
petitioner. Also came to be relied on the cross-
examination of the wife for the same purpose. It was

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C/CRA/460/2016 CAV ORDER

also submitted that application Exh.62 was filed by
the petitioner in the HMP proceedings to bring on
record the subsequent events. The order below Exh.73
was sought to be justified under Section 151 of the
Code of Civil Procedure, 1908.

4.2 Several decisions were relied on by learned
advocate for the petitioner. Firstly pressed into
service was the decision of the Supreme Court in
Suman Kapur v. Sudhir Kapur [(2009) 1 SCC 422] in
which the Supreme Court explained the types and
ingredients of cruelty. In that case, the respondent-
husband had re-married in 60 days of the decree of
divorce confirmed by the High Court and it was held
that since time period of SLP was 90 days, no
precipitative action could have been taken by the
respondent-husband by creating a situation of fate
accompli. This decision did not help the petitioner-
husband in any manner in the present case. Another
decision in K. Srinivas v. K. Sunita [(2014) 16 SCC
34] was relied on in which it was inter alia held
that filing of false criminal complaint against the
husband and family members could be regarded as one
of the constituent of matrimonial cruelty. By
pressing into service Malathi Ravi, M.D. v. B.V.
Ravi, M.D. [(2014) 7 SCC 640] it was submited that
event subsequent to one spouse leaving marital home
can be the basis for mental cruelty, if established
on undisputed material brought on record.

4.3 Yet another decision in K. Srinivas Rao v.

D.A. Deepa [(2013) 5 SCC 226] was relied on to

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C/CRA/460/2016 CAV ORDER

highlight that false complaint or criminal
proceedings taken cumulatively with other
circumstances may become mental cruelty and would
warrant the decree of divorce. By referring to

decision in Ramesh Kumar v. Kesho Ram [1992 Supp (2)
SCC 623] it was submitted that subsequent events
which have material bearing on the entitlement of the
parties to relief could be taken into consideration
by the Court for molding the relief. Thereafter
decision in Challamane Huchha Gowda v. M.R. Tirumala
[(2004) 1 SCC 453] was relied on to submit that a
mere non-mentioning or could not mentioning provision
in the pleadings is not a ground to reject the
pleadings. Learned advocate for the petitioner left
no stone unturned to assail the impugned order until
he rested on decision of Patna High Court in Sri
Rajesh Kumar v. Smt.Pushpa Rani being Civil Review
No.04 of 2016 in M.A. No.513 of 2009 decided on 16th
September, 2016.

4.4 Learned advocate for the respondent
submitted that the ex parte decree of divorce has now
already been set-at-naught and that the proceedings
of Hindu Marriage Petition are alive, to be
considered on merits. He submitted that there was no
provision in law which could permit a short-cut for
the petitioner-husband and to grab the decree of
divorce. Learned advocate for the respondent-wife
pressed into service the decision of the Supreme
Court in Savitri Pandey v. Prem Chandra Pandey
[(2002) 2 SCC 73] more particularly paragraphs 14 and
15 thereof.

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C/CRA/460/2016 CAV ORDER

5. Basic dates may be recapitulated. The

petitioner-husband filed Hindu Marriage Petition on
19th September, 2009. The ex parte decree came to be
passed on 11th February, 2010. The wife came to know
about passing of decree as per her case on 19th July,
2010. She made application under Order IX Rule 13,
CPC, for setting aside ex parte decree on 11th August,
2010. The said application came to be allowed on 10 th
May, 2011. The husband had appeared in the said
proceedings. Thereafter the petitioner-husband re-

5.1 Having attentively noticed the facts of the
case and having considered the rival submissions
carefully, it emerges that the ex parte decree of
divorce which was passed by the Court came to be set
aside. The case of the respondent-wife that summons
was not properly served which deprived her of her
defence and resultantly the ex parte decree came to
be passed was accepted by the court below.
Consequentially the marriage petition is presently
alive to be considered on its merits. The petitioner
has not challenged the said order of setting aside
the ex patre decree. In other words, all the
contentions of both the parties and the issue
involved in the the Hindu Marriage Petition filed for
divorce are large open to be considered. Merely
because it is the say of the husband that the second
marriage was validly entered into after ex parte
decree, the husband cannot be said to be becoming
entitled to get the decree of divorce by getting the
relief prayed for in application Exh.73 without

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C/CRA/460/2016 CAV ORDER

allowing the trial of the Hindu Marriage Petition.
Filing of application Exh.73 was indeed a short-cut
adopted by the petitioner-husband, which was not
permissible. The learned Judge below could not be
said to have committed any error when he observed
that there was no provision for filing the
application of such nature. The submission could
hardly be countenanced that the application of such
kind and nature as was filed at Exh.73 could have
been filed under Section 151, CPC, and could have
been viewed to be within purview of the said

5.2 On the basis of the averments in application
Exh.73, the finding cannot be jumped at to conclude
that the case for divorce and ground urged for
divorce were established and proved. These are the
issues, aspects and concerns to be addressed in
course of trial. Whether the act of re-marriage by
the petitioner-husband was proper in terms of his
conduct and its permissibility of law, is required to
be examined. The respondent-wife is entitled to raise
doubt about bona fides of such conduct to oppose the
decree of divorce.

5.3 In Savitri Pandey (supra) relied on by the
respondent, it was held that co-habitation by husband
and wife is an essential feature of a valid marriage.
It was held that re-marriage by the divorced person
during the pendency of the appeal which was filed
after expiry of limitation period, would be at the
risk of the party entering into such re-marriage and

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C/CRA/460/2016 CAV ORDER

its validity was entirely dependent on the outcome of
the pending appeal. In that case the submission that
marriage between the appellant and the respondent
ought to have been dissolved, was not accepted on

5.4 In Savitri Pandey (supra), it was a
submission canvassed by learned advocate for the
appellant-wife that after the decree of divorce, the
appellant had re-married with one Sudhakar and out of
the second marriage, a child was also stated to have
born and that it would be in the interest of justice
and the parties that the marriage between them was
dissolved by decree of divorce. The court observed in
response that in order to appreciate such submission,
facts have to be adverted to in each case and that
the interest of the public as well as interest of th
society may have to be borne in mind. In the case
before the Supreme Court, the second marriage was
entered into during the pendency of the appeal before
the High Court. The Supreme Court specifically stated
that right of at least one appeal is a recognised
right under all systems of civilised legal
jurisprudence. It was stated that despite pendency of
the appeal, the appellant opted to solemnised the
second marriage which, stated the Supreme Court, an
adventure undertaken at her own risk and the ultimate
consequence arising of the judgment in an appeal
pending in the High Court.

5.5 The Supreme Court in Savitri Pandey (supra)
further observed that in all cases relied on by the

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C/CRA/460/2016 CAV ORDER

appellant, marriage between the parties was dissolved
by decree of mutual consent and that the facts and
circumstances of each case was taken into account and
further that in almost all cases the other side was
compensated by grant of lumpsum amount and permanent
provision regarding maintenance. The Apex Court
succinctly observed, “No person can be permitted to
flout the course of justice by his or her overt and
covert acts”. It was observed further that, “The
marriage between the parties cannot be dissolved only
on the averments made by one of the parties that as
the marriage between them has broken down, no useful
purpose would be served to keep it alive”.

6. The facts of the present case also have to
be guided by the aforesaid principle. Furthermore,
whether the wife had knowledge of the fact of the
petitioner-husband of re-marrying, is a factual
aspect to be gone into to be decided on evidence.
Whether it was a desertion by wife voluntarily acted
upon is also to be based on evidence. The ground of
cruelty raised by the petitioner-husband seeking
divorce has to be established in its legal sense and
dimensions. Without all these questions being
addressed in the parent proceedings of Hindu Marriage
Petition, it is not possible to countenance the bald
submission, that too made by way of an interim
application, that because the marriage was contracted
after the ex parte decree of divorce and which, in
the perception of the petitioner-husband was after
expiry of the statutory period, the decree of divorce
would have to be passed. As all the grounds and

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C/CRA/460/2016 CAV ORDER

questions raised by the parties are at large to be
considered and decided in the proceedings of Hindu
Marriage Petition, the fact of re-marriage cannot be
a ground, in any view, to get decree for divorce
automatically by seeking such prayer in interim

7. In the aforesaid view and for the reasons
recorded hereinabove, the rejection of application
below Exh.73 by learned Principal Senior Civil Judge,
Kalol, in H.M.P. No.46 of 2009 is not liable to be
interfered with. The Civil Revision Application
therefore fails and the same is hereby dismissed.
Notice is discharged. Interim relief granted on 15th
September, 2016 stands vacated. The trial court shall
proceed with the H.M.P. No.46 of 2009 in accordance
with law.



After the above order is pronounced, learned
advocate Mr.Savjani requested that interim relief
which has been continued since 15th September, 2016
may be continued for some time to enable the
petitioner to approach higher forum. Learned advocate
Mr.Hriday Buch objected the prayer.

In the facts and circumstances of the case,
interim relief operation in the Civil Revision
Application shall continue to operate till 12th
November, 2018.


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