Delhi High Court

Seema Devi vs Shree Ranjit Kumar Bhagat on 21 April, 2023

Author:
Sanjeev Sachdeva

Bench:
Sanjeev Sachdeva

N.C. No. 2023:DHC:2686-DB

$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 02.02.2023
Judgment delivered on: 21.04.2023

+ MAT.APP.(F.C.) 189/2022

SEEMA DEVI ..... Appellant
Versus
SHREE RANJIT KUMAR BHAGAT ..... Respondent

Advocates who appeared in this case:

For the Appellant: Appellant in person.
For the Respondent: Mr Neeraj Shekhar, Dr. Sumit Kumar and Mr
Keshav Bharti, Advocates along with
respondent in person.

CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE VIKAS MAHAJAN

JUDGMENT

VIKAS MAHAJAN, J.

1. The present appeal has been filed assailing the order dated 03.02.2006
vide which the Additional District Judge, Delhi has dismissed the application
filed by the appellant under
Order IX Rule 13 of the Code of Civil Procedure
,
1908, seeking setting aside of the ex parte judgment and decree of divorce
passed between the parties on 14.05.2003 in HMA No.849/2001.

2. The marriage between the parties was solemnized on 04.05.1998 at
Village Maliganj, District Madhepura, Bihar and a girl child was born from the

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said wedlock on 23.07.1999, who is presently 23 years of age.

3. Disputes and differences arose between the parties which led the
respondent-husband to file a divorce petition against the appellant on
27.07.2001 in the Court of District Judge, Saharsa, Bihar.

4. Subsequently, on an application of withdrawal being filed by the
respondent husband, the Court at Saharsa returned the Divorce Petition for
being filed in the Court of proper jurisdiction.

5. Thereafter, the respondent filed a Divorce Petition in the District Court,
Delhi on 15.10.2001 under
Section 13(1)
(i-a) and (i-b) of the
Hindu Marriage
Act, 1955
[in short 'the Act'] premised on the ground of cruelty and desertion.
The summons was issued to the appellant-wife but she refused to accept the
same. Based on the report of the process server to the effect that the appellant
refused to accept the summons, the appellant-wife was proceeded ex parte in
the divorce proceedings on 08.04.2003. Eventually, the divorce petition was
allowed and an ex parte decree of divorce on the ground of "desertion" was
passed in favour of the respondent-husband and against the appellant-wife, on
14.05.2003 by the Additional District Judge, Delhi.

6. After about 18 months, on 25.11.2004 the appellant-wife filed an
application under
Order IX Rule 13 CPC
alleging that the summons issued by
the court in the divorce petition was neither tendered to her nor she refused to
accept the same. It was pleaded by her that she acquired the knowledge of the
ex parte divorce decree dated 14.05.2003 only on 30.08.2004, when the copy
of said ex parte divorce decree was filed by the respondent-husband in her
maintenance proceedings pending in the Court at Madhepura, Bihar.
Additionally, it was pleaded by the appellant-wife that the respondent-husband

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had earlier filed a divorce case in the Court at Saharsa, which was withdrawn
by him for being filed in the Court at Madhepura in Bihar, therefore, the
divorce petition could not have been filed before the District Judge, New Delhi.

7. The respondent filed his reply, pleading that the appellant was having
knowledge of the Divorce Petition filed by him in Delhi and that he has already
re-married to Smt. Sanju Devi, D/o of Sh. Ramji Prasad Bhagat on 24.11.2004
as per Hindu rites and customs.

8. Learned Additional District Judge, Delhi vide impugned order dismissed
the application of the appellant-wife under
Order IX Rule 13 CPC
on the
ground that the appellant-wife was aware of the divorce petition pending in the
Court at Delhi and that the contention that she had not been duly served and
had not refused to accept the notice of the petition, cannot be accepted. To
return this finding, the learned Additional District Judge has relied upon the
pleadings and the orders passed in other litigations between the parties wherein
there is a specific reference to the divorce petition having been filed by the
respondent-husband in the Court at Delhi. The learned Additional District
Judge also relied upon the cross-examination of the appellant-wife and her
father in a petition filed by the appellant-wife seeking maintenance [Misc. Case
No.27 /2001] wherein they had admitted about the pendency of the divorce
proceedings pending between the parties. The material part of the impugned
order reads as under: -

"The entire record thus speaks unequivocally to the effect that the
applicant was aware of the divorce petition pending in the Delhi
Courts through the anticipatory bail proceedings dated 25.02.2002 in
the Court of the Ld. Sessions Judge at Madhepura in Anticipatory Bail
Petition No.10/2002, that the applicant was aware of the divorce
petition being pending at the Delhi Courts, in view of averments made

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in the Anticipatory Bail Petition No.27/2002 filed by the non-
applicant in the court of Ld. Sessions Judge at Madhepura, that the
applicant was aware of the divorce petition having been filed by the
non-applicant at Delhi Courts through the show cause petition filed
by the non-applicant dated 22.07.2002 filed by the non-applicant in
Misc. Case No.27/2001 in the Court of the Judicial Magistrate, First
Class, Madhepura. The applicant was also aware of the pendency of
the divorce petition at Delhi, in view of order dated 16.09.2002 of the
Hon'ble High Court of Patna in Criminal Misc. No.12273/2002, the
anticipatory bail application filed by the non-applicant, the applicant
was aware of the pendency of a divorce petition other than the divorce
petition filed by the non-applicant, which was returned on 21.08.2001
by the Ld. District Judge at Saharsha as being pending on the date
31.11.2002, as per her statement dated 30.11.2002 in Misc. Case
No.27/2001, as per her cross-examination before the Court of the
Judicial Magistrate, First Class, Madhepura, that the father of the
applicant Sh. Vijay Kumar Bhagat was also aware of the pendency of
a divorce petition other than the divorce petition already withdrawn,
as per cross-examination dated 02.12.2002 before the Court of the
Judicial Magistrate, First Class, Madhepura in Case No.27/2001 and
the copy of that divorce petition was with the lawyer of the father of
the applicant, as per the cross-examination of Sh. Vijay Kumar
Bhagat.

It is thus apparent that the contention of the applicant that she was
not aware of the pendency of the divorce proceedings in the Court at
Delhi and had not been duly served with the notice of the petition and
had not refused to accept the same cannot be accepted."

9. The appellant who appeared in-person has submitted that the respondent-
husband has not only played a fraud upon the appellant but has also played
fraud upon the Hon'ble Court. She submits that the earlier divorce petition was
filed by the respondent before the District Judge, Saharsa but the said petition
was withdrawn by the respondent stating that the Saharsa District court has no
jurisdiction and only the Madhepura District Court had jurisdiction and
accordingly, such withdrawal was allowed by the District Judge, Saharsha on

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21.08.2001. She contends that the appellant always had an impression that the
divorce petition will be filed only in Madhepura Court, Bihar but the
respondent committed fraud by filing the divorce petition in the Court at Delhi.
She further submits that she had no knowledge about the divorce petition
pending before the Additional District Judge, Delhi. It is further contended
that the appellant was not a party to the anticipatory bail applications filed by
the respondent and his family members in Complaint Case No.577/2001,
therefore, knowledge cannot be attributed based on the averments made in the
said applications or orders passed therein. She, thus, prayed for setting aside of
the impugned order as well as the judgment and decree of divorce dated
14.05.2003.

10. Per contra, Mr Neeraj Shekhar, learned counsel appearing on behalf of
the respondent, contends that the service of summons was earlier refused by
the appellant and such refusal has been recorded by the postal authorities on
the registered cover. Subsequently, the summons was directed to be served
through the District Judge, Madhepura but the appellant again refused to accept
the same, therefore, a copy of the same was affixed by the process server on a
conspicuous part of the appellant's residence. He thus, urged that the appellant
was duly served. He further contends that in any case, the defendant had notice
of the date of hearing in the divorce petition, therefore, the learned Additional
District Judge has rightly refused to set aside the ex parte decree. To add
emphasis to his argument, he invited attention of the court to - (i) order dated
25.02.2002, whereby the anticipatory bail application of the family members of
the respondent-husband was dismissed; (ii) anticipatory bail application
no.27/2002 filed by the respondent in Complaint Case No.577/2001 under

Section 498A
/
/
IPC; (iii) reply filed by the respondent in maintenance

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Case No.27/2001 before the Chief Judicial Magistrate, Madhepura; and (iv) an
order dated 16.09.2002 passed by High Court of Patna in
Crl.Misc.No.12273/2002 on an application for grant of anticipatory bail in
complaint case under
Section 498A
/
/
IPC, which contains reference to
the proceedings of divorce pending at Delhi. He further refers to the statement
of the appellant dated 30.11.2002 recorded in the Court of Judicial Magistrate,
First Class, Madhepura in Misc. Case No.27/2001 seeking maintenance,
wherein she has admitted that the respondent has filed a case of divorce against
her. He also draws the attention of the court to the statement dated 02.12.2002
of Shri Vijay Kumar Bhagat, father of the appellant, in the same case wherein
the appellant's father has admitted about the divorce case having been filed by
the respondent and a copy of the divorce case being in possession of their
advocate. The learned counsel further contends that not only the respondent
has remarried but he has two children from the said wedlock, therefore, the
present appeal is infructuous.

11. We have considered the rival submissions made by the appellant
appearing in-person, as well as, by the learned counsel for the respondent and
have examined the record.

12. The mode of delivery of summons through registered/speed post and the
effect of refusal by the defendant to take delivery of the postal article
containing summons, has been provided in Rule 9 of Order V of the Code,
which after the amendment of 2002, reads as under:-

"9. Delivery of summons by Court.--(1) Where the defendant resides
within the jurisdiction of the Court in which the suit is instituted, or
has an agent resident within that jurisdiction who is empowered to
accept the service of the summons, the summons shall, unless the
Court otherwise directs, be delivered or sent either to the proper

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officer to be served by him or one of his subordinates or to such
courier services as are approved by the Court.

(2) The proper officer may be an officer of a Court other than that in
which the suit is instituted, and, where he is such an officer, the
summons may be sent to him in such manner as the Court may direct.
(3) The services of summons may be made by delivering or
transmitting a copy thereof by registered post acknowledgment due,
addressed to the defendant or his agent empowered to accept the
service or by speed post or by such courier services as are approved
by the High Court or by the Court referred to in sub-rule (1) or by any
other means of transmission of documents (including fax message or
electronic mail service) provided by the rules made by the High
Court:

Provided that the service of summons under this sub-rule shall be
made at the expenses of the plaintiff.

(4) Notwithstanding anything contained in sub-rule (1), where a
defendant resides outside the jurisdiction of the Court in which the
suit is instituted, and the Court directs that the service of summons on
that defendant may be made by such mode of service of summons as is
referred to in sub-rule (3) (except by registered post acknowledgment
due), the provisions of Rule 21 shall not apply.

(5) When an acknowledgment or any other receipt purporting to be
signed by the defendant or his agent is received by the Court or postal
article containing the summons is received back by the Court with an
endorsement purporting to have been made by a postal employee or
by any person authorised by the courier service to the effect that the
defendant or his agent had refused to take delivery of the postal
article containing the summons or had refused to accept the summons
by any other means specified in sub-rule (3) when tendered or
transmitted to him, the Court issuing the summons shall declare that
the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, pre-paid
and duly sent by registered post acknowledgment due, the declaration
referred to in this sub-rule shall be made notwithstanding the fact that
the acknowledgment having been lost or mislaid, or for any other
reason, has not been received by the Court within thirty days from the
date of issue of summons.

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(6) The High Court or the District Judge, as the case may be, shall
prepare a panel of courier agencies for the purposes of sub-rule (1)."

13. It is clear from the perusal of above provision that one of the modes of
delivering of summons as prescribed under Order 5 Rule 9(3) includes service
through registered post acknowledgement due or by speed post. Order 5 Rule
9(5) specifically provides that if there is a refusal by the defendant to take
delivery of the postal article containing summons and the same is received
back by the Court with an endorsement made by a postal employee to that
effect, the court issuing summons is obliged to declare that the summons had
been duly served on the defendant.

14. Order V Rule 17 of the Code deals with a somewhat similar situation
where the serving officer tries to serve the summons and the defendant refuses
to accept or sign the acknowledgement. Order V Rule 17 reads as under:

"17. Procedure when defendant refuses to accept service, or cannot
be found.--Where the defendant or his agent or such other person as
aforesaid refuses to sign the acknowledgment, or where the serving
officer, after using all due and reasonable diligence, cannot find the
defendant , [who is absent from his residence at the time when service
is sought to be effected on him at his residence and there is no
likelihood of his being found at the residence within a reasonable
time] and there is no agent empowered to accept service of the
summons on his behalf, nor any other person on whom service can be
made, the serving officer shall affix a copy of the summons on the
outer door or some other conspicuous part of the house in which the
defendant ordinarily resides or carries on business or personally
works for gain, and shall then return the original to the Court from
which it was issued, with a report endorsed thereon or annexed
thereto stating that he has so affixed the copy, the circumstances
under which he did so, and the name and address of the person (if
any) by whom the house was identified and in whose presence the
copy was affixed."

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15. The above provision makes it evident that that when the defendant
refuses to sign the acknowledgement, the serving officer is obliged to affix a
copy of the summons on the outer door or some other conspicuous part of the
house in which the defendant ordinarily resides and is obliged to return the
original summons to the court from which it was issued, with a report endorsed
thereon or annexed thereto stating that he has so affixed the copy, the
circumstances under which he did so, and the name and address of the person
(if any) by whom the house was identified and in whose presence the copy was
affixed.

16. Initially summons in the divorce petition was issued to the appellant on
16.10.2001 for 20.12.2001 but the postal authorities reported that on repeated
visits the addressee could not be found. Again, fresh summons was issued on
20.12.2001 for 07.03.2002 but after repeated visits, the postal authorities gave
the report on 17.01.2002 that the addressee had refused to accept the registered
post. In view of the endorsement of refusal, the service stood effected on the
appellant but at that juncture the Court did not make a declaration that the
summons had been duly served on the appellant, in terms of Order V Rule 9(5)

CPC
.

17. Summons was then issued on 16.05.2002 but the process issued was not
received back. Vide order dated 28.11.2002, learned Additional District Judge,
Delhi issued fresh summons for service through registered post, as well as,
through the concerned District Judge, but the same were received back
unexecuted.

18. Again on 23.01.2003, summons was issued for 08.04.2003 through

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registered post, as well as, through the concerned District Judge. The summons
sent through registered post were received back unexecuted with the report that
"lene se inkaar karne par chipka diya". The process server also tried to serve
the appellant but as the appellant had refused to accept the same, therefore, a
copy of the summons and the petition, were affixed by him on a conspicuous
part of the appellant's residence in the presence of two witnesses, namely, Sh.
Sanjeev Kumar and Chowkidar Sh. Paswan. The report of the process server,
duly affirmed before the Nazir of the Court at Madhepura, is part of the lower
court record. The service was thus, effected on the appellant as per the
procedure laid down in Rule 17 of
Order V CPC
.

19. On the basis of the report of the process server, and regard being had to
the previous refusal, the learned Additional District Judge, Delhi vide order
dated 08.04.2003 proceeded ex-parte against the appellant. We are also of the
view that the procedure adopted for effecting the service on appellant was
proper and the service was complete. There is no irregularity in the service of
summons and the learned Additional District Judge has rightly held that the
appellant had been duly served with the summons in the divorce petition.

20. There is another aspect of the matter. Even if there is any irregularity in
the service of summons, still in view of the second proviso to Rule 13 of Order
IX an ex-parte decree cannot be set aside on the ground of irregularity in
service of summons, if the Court is satisfied that appellant had notice of the
date of hearing and had sufficient time to appear in the Court. At this juncture,
it is apposite to reproduce the provisions of
Order IX Rule 13 CPC
, which
reads as under:

"13. Setting aside decree ex parte against defendant.--In any case
in which a decree is passed ex parte against a defendant, he may

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apply to the Court by which the decree was passed for an order to set
it aside; and if he satisfies the Court that the summons was not duly
served, or that he was prevented by any sufficient cause from
appearing when the suit was called on for hearing, the Court shall
make an order setting aside the decree as against him upon such
terms as to costs, payment into Court or otherwise as it thinks fit, and
shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be
set aside as against such defendant only it may be set aside as against
all or any of the other defendants also:

Provided further than no Court shall set aside a hdecree passed ex
parte merely on the ground that there has been an irregularity in the
service of summons, if it is satisfied that the defendant had notice of
the date of hearing and had sufficient time to appear and answer the
plaintiff's claim.

Explanation.--Where there has been an appeal against a decree
passed ex parte under this rule, and the appeal has been disposed of
an any ground other than the ground that the appellant has
withdrawn the appeal, no application shall lie under this rule for
setting aside that ex parte decree."

21. The Supreme Court in
Parimal Vs. Veena @ Bharti
, (2011) 3 SCC 345,
while noting the mandatory nature of the second proviso to Rule 13 of
Order
IX CPC
, observed that the Court shall not set aside the ex parte decree on mere
irregularity in the service of summons in a case where the defendant otherwise,
had notice of the date of hearing and sufficient time to appear in the court. The
relevant para 12 of the judgment reads as under :-

"12. It is evident from the above that an ex parte decree against a
defendant has to be set aside if the party satisfies the court
that summons had not been duly served or he was
prevented by sufficient cause from appearing when the suit was called
on for hearing. However, the court shall not set aside the said decree
on mere irregularity in the service of summons or in a case where the

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defendant had notice of the date and sufficient time to appear in the
court. The legislature in its wisdom, made the second proviso
mandatory in nature. Thus, it is not permissible for the court to allow
the application in utter disregard of the terms and conditions
incorporated in the second proviso herein."

(emphasis supplied)

22. Now, reverting to the facts of the case at hand; no doubt the factum of
divorce petition having been filed by the respondent in the Court at Delhi, has
been mentioned in the - (i) application for anticipatory bail filed by the
respondent husband in Case No.577/2001 initiated by the appellant under

Sections 498A
/
/
IPC; (ii) order dated 25.02.2002 of Ld. Session Judge,
Madhepura rejecting the bail application filed by the family members of the
respondent/husband in the aforesaid case; (iii) reply to show cause notice
submitted by the respondent in the Misc. No.27/2001 filed by the appellant in
the court of CJM, First Class, Madhepura claiming maintenance from the
respondent; and (iv) order dated 16.09.2002 passed by the High Court of Patna
in Crl.Misc.No.12273/2002 granting anticipatory bail to the respondent; but
these documents do not indicate other details apropos the divorce petition viz.,
the number of the divorce petition, the Court before which it is pending and the
next date of hearing. Therefore, on the basis these documents at the best,
knowledge of the divorce petition pending in the Court at Delhi could be
attributed to the appellant but it cannot be said with certainty that she had
notice of the "date of hearing", which is a requirement under the second
proviso to Rule 13 of
Order IX CPC
for not setting aside an ex parte decree on
the ground of irregularity in the service of summons.

23. However, the following admissions made by the appellant and her father
in their cross-examination in maintenance proceedings pending in the Court of

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Judicial Magistrate, First Class Madhepura, cannot be ignored.

(i) The relevant part of the appellant's statement dated 30.11.1992
reads as under:

"12. My husband has filed the case of divorce against me. I don't
know that when the case of divorce was filed."

(emphasis supplied)

(ii) The relevant part of the statement dated 02.12.2022 of the
appellant's father, Shri Vijay Kumar Bhagat, reads as under:

"19. My daughter Seema used to go to Bakhtiyarpur. I have not
attended the Court case of divorce filed by my son-in-law. I have
learnt about divorce case recently. Advocate sahib has taken the
copies etc. of divorce case. It is not correct that divorce case was
filed at first."

(emphasis supplied)
Conjoint reading of the statements of the appellant and her father makes
it evident that the appellant has been served with summons and she had handed
over the copy of the divorce petition to her Advocate, which leads to the
conclusion that the appellant had the notice of the "date of hearing" in the
divorce petition and had sufficient time to appear in the Court and answer
respondent's claim.

24. Notably, the divorce suit filed in the court at Saharsa was withdrawn by
the respondent on 21.08.2001, while the divorce petition was filed by him in
the District Court, Delhi on 15.10.2001, therefore, the admission of appellant
and her father made subsequently in their statements on 30.11.2002 and
02.12.2002, respectively, as regard the divorce case having been filed by the
respondent, undoubtedly alludes to the divorce petition filed in Delhi.

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25. In the circumstances, the contention of the appellant that she was not
duly served and that she had no knowledge of the divorce petition filed by the
respondent before the Court in Delhi is bereft of any merit.

26. The contention of the appellant that the respondent withdrew the divorce
petition filed before the District Judge, Saharsa for filing it before the District
Court, Madhepura but the respondent committed fraud upon the appellant by
filing it before the District Court in Delhi instead of Madhepura, is also without
substance. The order dated 21.08.2001 of District Judge, Saharsa vide which
Divorce Petition no.12/2001 was withdrawn from Court at Saharsa does not
record that the divorce petition is being withdrawn for being filed at
Madhepura. Rather the order mentions that the divorce petition is being
withdrawn for being filed before the Court of proper jurisdiction. The material
part of the said order reads as under :

"A petition has been filed on behalf of plaintiff/petitioner praying
there in that to return the plaint in order to get it filed in a Court of
proper jurisdiction as there appears no jurisdiction of this case in the
instant case. Heard arguments for the Plaintiff/Petitioner.
Since the plaintiff/Petitioner himself wants to withdraw the suit, let the
plaint of this suit be returned to him accordingly. Accordingly this suit
stands disposed of."

The appellant, in any case, could have objected to the territorial jurisdiction of
the Court at Delhi to entertain the divorce petition filed by the respondent after
entering her appearance in the divorce petition, but she chose not to appear
despite service and adequate notice of the date of hearing.

27. Another submission of the learned counsel for the respondent is that
after seventeen months of the ex-parte decree, the respondent has remarried
and now has two children from the second marriage - one son aged about 16

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years and a daughter aged about 15 years. During the course of arguments, we
have specifically put to the appellant whether she admits second marriage of
the respondent, to which her reply is evasive. She states that the second
marriage of the respondent is not a subject matter of the present appeal and it is
for the court to decide about the legal status of the second marriage. The
appellant did not, however, deny or dispute the factum of the respondent's
second marriage. On the contrary, the respondent through an affidavit dated
08.08.2007 has placed on record the fact that he has remarried on 24.11.2004.

28. The legal status of the respondent's second marriage and its bearing on
the present appeal, however, has to be tested on the anvil of
Section 15
of the
Act, which reads thus:

"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."

29. In terms of
Section 15
of the Act, either party to the marriage is well
within his or her right to marry when the time for filing an appeal has expired
without an appeal having been preferred, or an appeal has been presented but
the same has been dismissed. The bar or impediment to contract a second
marriage operates during the pendency of appeal only if an appeal is preferred
within the period of limitation. In other words, the provision enables parties to
marry again only after the decree of divorce has become final.

30. The provision of
Section 15
of the Act has been subject matter of a
recent decision of the Supreme Court in
Krishnaveni Rai v. Pankaj Rai and

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Anr., (2020) 11 SCC 253. In that case the ex-husband of appellant wife
remarried as no appeal was filed within period of limitation. The appeal was
preferred by the appellant wife almost one year after the expiry of period of
limitation. In this factual backdrop, the Supreme Court held that bar of
Section
was not attracted, it was lawful for the ex-husband to remarry and the
appeal was infructous from the inception. The relevant extract of the judgment
reads as under:

"28.
Section 15
clarifies 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 preferred, or an appeal has been
presented but the same has been dismissed, it shall be lawful for
either party to the marriage to marry again. Had it been the
legislative intent that a marriage during the pendency of an appeal
should be declared void, Section 11 would expressly have provided so.

29. As held by this Court in
Anurag Mittal v. Shaily Mishra
Mittal [Anurag Mittal
v. Shaily Mishra Mittal, (2018) 9 SCC 691 :

(2018) 4 SCC (Civ) 550] , the object of
Section 15
is to provide
protection to the person who had filed an appeal against the decree of
dissolution of marriage and to ensure that such appeal was not
frustrated. The protection afforded by
Section 15
is primarily to a
person contesting the decree of divorce. As observed by Bobde, J. in
his concurring judgment in
Anurag Mittal [Anurag Mittal v. Shaily
Mishra Mittal
, (2018) 9 SCC 691 : (2018) 4 SCC (Civ) 550] : (SCC
pp. 702-703, paras 31 & 33)

"I am in agreement with the view taken by Nageswara Rao, J. but it is
necessary to state how the question before us has already been settled
by the decision in
Lila Gupta v. Laxmi Narain [Lila Gupta
v. Laxmi
Narain, (1978) 3 SCC 258] .

Even when the words of the proviso were
found to be prohibitory in clear negative terms -- "it shall not be
lawful", etc., this Court held that the incapacity to marry imposed by
the proviso did not lead to an inference of nullity, vide para 9 of
Lila
Gupta [Lila Gupta v. Laxmi Narain
, (1978) 3 SCC 258] . It is all the

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more difficult to infer nullity when there is no prohibition; where
there are no negative words but on the other hand positive words like
"it shall be lawful".

Assuming that a marriage contracted before it
became lawful to do so was unlawful and the words create a
disability, it is not possible to infer a nullity or voidness vide paras 9
and 10 of
Lila Gupta
case [
Lila Gupta v. Laxmi Narain
, (1978) 3 SCC
258] . ...

***

33. What is held in essence is that if a provision of law prescribes an
incapacity to marry and yet the person marries while under that
incapacity, the marriage would not be void in the absence of an
express provision that declares nullity. Quae incapacity imposed by
statute, there is no difference between an incapacity imposed by
negative language such as "it shall not be lawful" or an incapacity
imposed by positive language like "it shall be lawful (in certain
conditions, in the absence of which it is impliedly unlawful)". It would
thus appear that the law is already settled by this Court that a
marriage contracted during a prescribed period will not be void
because it was contracted under an incapacity. Obviously, this would
have no bearing on the other conditions of a valid marriage. The
decision in
Lila Gupta
case [
Lila Gupta v. Laxmi Narain
, (1978) 3
SCC 258] thus covers the present case on law."

31. In any case, the bar of
Section 15
is not at all attracted in the facts
and circumstances of this case, where the appeal from the decree of
divorce had been filed almost a year after expiry of the period of
limitation for filing an appeal.
Section 15
permits a marriage after
dissolution of a marriage if there is no right of appeal against the
decree, or even if there is such a right to appeal, the time of appealing
has expired without an appeal having been presented, or the appeal
has been presented but has been dismissed. In this case, no appeal
had been presented within the period prescribed by limitation.

32. The bar, if any, under
Section 15
of the Hindu Marriage Act
applies only if there is an appeal filed within the period of limitation,
and not afterwards upon condonation of delay in filing an appeal
unless of course, the decree of divorce is stayed or there is an interim
order of court, restraining the parties or any of them from remarrying
during the pendency of the appeal.

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33. As observed above, the appeal was infructuous for all practical
purposes, from the inception, since the appellant's ex-husband had
lawfully remarried after expiry of the period of limitation for filing an
appeal, there being no appeal till then."

(emphasis supplied)

31. When confronted with
the above decision
in
Krishnaveni Rai
(supra),
the appellant submits that it will not apply in case where the husband has
obtained ex parte decree of divorce and that too by committing fraud.

32. It is trite that the dissolution of marriage is complete once the decree is
made. A decree of divorce breaks the marital tie and the parties forfeit the
status of husband and wife in relation to each other. Each one becomes
competent to contract another marriage as provided by
section 15
of the Act1.
In law the effect of ex parte decree of divorce is not different from a contested
one. Even
Section 15
of the Act does not make any distinction between a
contested decree and an ex parte decree. Therefore, in case of an ex parte
decree of divorce also it shall be lawful for either party to the marriage to
marry again if no appeal is filed against such decree within the period of
limitation.

33. In the present case no appeal was preferred within the period of
limitation or even thereafter. The application under
Order 9 Rule 13 CPC
was
also filed after seventeen months from the date of ex parte decree as against
limitation period of thirty days from the date of decree as provided under

Article 123
of the
Limitation Act
, despite the appellant having been duly
served with summons.
In the circumstances, it was lawful for the respondent
Smt. Lila Gupta vs. Laxmi Narain
, AIR 1978 SC 1351

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husband to solemnize another marriage. We have already observed that no
fraud has been committed by the respondent. Summons was also served on the
appellant as per the procedure prescribed in law. This being the position, an
application under
Order 9 Rule 13 CPC
filed by the appellant a day after the
second marriage was solemnized by the respondent-husband, was infructuous
for all practical purposes, from the very inception. So is the present appeal.

34. In view of the above, there is no merit in the appeal and accordingly, the
same is dismissed.

VIKAS MAHAJAN, J.

SANJEEV SACHDEVA, J.

APRIL 21, 2023
MK

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