N.C. No. 2023: DHC:2686-DB
Date of Order:
21 April 2023
Hon'ble Mr. Justice Sanjeev Sachdeva, Hon'ble Mr. Justice Vikas Mahajan
Appellant - Seema Devi
Respondent- Shree Ranjit Kumar Bhagat
Divorce under the Hindu Marriage Act is a legal process in India that is governed by the Hindu Marriage Act 1955. The Act applies to any marriage between two Hindus, Buddhists, Jains, or Sikhs, and also to a marriage between two persons who have converted to any of these religions. Divorce in India can be sought on various grounds, specified in the Act. These grounds include adultery, cruelty, desertion, conversion to another religion, mental illness, or incurable venereal disease.
Code of Civil Procedure, 1908
- Order IX Rule 13
Hindu Marriage Act, 1955
- Section 13(1)(i-a)
- Section 13(1)(i-b)
- Section 15
- Article 123
- A marriage was solemnized between two parties on 04.05.1998 after which a girl child was born out of the marriage.
- Later on in the marriage, disputes started to rise between the parties after which, the husband (respondent) filed a divorce petition against the wife (appellant), before the Bihar District Court. The said application was however withdrawn by the husband.
- Later on, the husband filed a divorce petition before the Delhi District Court, alleging the wife of desertion and cruelty under Section 13(1)(i-a) and Section 13(1)(i-b) of the Hindu Marriage Act, 1955.
- Despite the denial of the allegations by the wife and her ex-parte involvement in the divorce proceedings, the divorce petition was passed in favor of the respondents on the grounds of desertion.
- The wife filed an application under Order IX, Rule 13 of the Civil Procedure Code, 18 months later, stating that she had not accepted the summons issued by the court in the divorce petition.
- The wife argued that she was only aware of the ex parte divorce decree once a copy of the same was filed by the respondent in her pending maintenance proceedings before the Bihar Court.
- It was additionally pleaded that since the husband had withdrawn the application before the Bihar District Court, he could not have filed the same before the Delhi High Court.
- The respondent replied stating that the appellant had full knowledge of the divorce and that he had already remarried.
- The wife's application was dismissed by the Additional District Judge of Delhi. Aggrieved by this decision, the appellant approached the Hon’ble Delhi High Court.
Is the appeal filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking to set aside the ex parte judgment and decree of divorce passed between the parties on 14.05.2003 in HMA No.849/2001 maintainable?
ARGUMENTS ADVANCED BY THE APPELLANT
- The appellant submitted that the respondent had committed fraud against the appellant as well as upon the Hon'ble Court.
- She further submitted that the respondent gave off the impression that the petition would be filed only before the Madhepura Court, Bihar. She argued that by filing the petition before the District Court of Delhi, the respondent committed fraud.
- The appellant urged that she did not know about the petition. Since she wasn’t a party to the anticipatory bail filed by the respondent and his family members, she could not have been deemed to know the same.
ARGUMENTS ADVANCED BY THE RESPONDENT
- Mr. Neeraj Shekhar represented the respondents in the present case.
- The counsel argued that the appellant had knowledge of the summons but the acceptance of the same was refused by the appellant.
- The counsel brought to the attention of the bench Case No.27/2001, where the wife admits to knowing the divorce petition filed against her.
- The counsel also pointed out the statement made by the appellant’s father in the above-mentioned case where he admits that a copy of the divorce case is in their advocate's possession.
- Finally, the counsel asserted that the present petition is meaningless since the respondent has already remarried and has two children from the current marriage.
- The Delhi High Court dismissed the appeal as lacking merit.
- Firstly, the court observed that a summons was issued to the appellant but even after repeated visits, the postal authorities reported that the addressee could not be found. Hence, it was reported that the summons was refused by the appellant.
- It was ruled that if the Court finds that the defendant had notice of the date of hearing and sufficient time to appear and answer the plaintiff's claim, it will not set aside an ex parte decree merely on the grounds of an irregularity in the service of summons.
- The scope of section 15 of the Limitation Act reiterated in the decision of Krishnaveni Rai v. Pankaj Rai [(2020) 11 SCC 253] was upheld by this court in the judgment. It was held that as per Section 15 of the Act, either party to a marriage has the right to marry when the appeal period has expired, or when an appeal has been filed but dismissed.
- The court cited Parimal Vs. Veena Bharti [(2011) 3 SCC 345] substantiates the above point.
- It was determined by the court that the appellant failed to appeal within the limitation period and that the application under Order 9 Rule 13 CPC was also filed after seventeen months from the ex parte decree, rather than the thirty-day limitation period provided for in Article 123 of the Limitation Act.
- Reliance was placed on the case of Smt. Lila Gupta vs. Laxmi Narain [AIR 1978 SC 1351] stated that no fraud was committed by the husband and that he was legally permitted to remarry given the circumstances.
A limitation period is a time limit by which legal claims must be brought to court. The bench consisting of Hon'ble Mr. Justice Sanjeev Sachdeva, and Hon'ble Mr. Justice Vikas Mahajan propounded significant principles regarding the adherence to limitation periods provided under the Limitation Act. The present appeal was held to be infructuous from the start since the appellant's ex-husband had lawfully remarried after the expiry of the period of limitation for filing an appeal.