Second marriage after passing an ex-parte decree

anju (Querist) 26 November 2012 This query is : Resolved
need to know, after passing an ex-parte decree, one can marry after how many days. if he/she marry on 31st day n other person appeal on 35day, in this situation is marriage valid or not. plz help

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Advocate Ramesh (Expert) 26 November 2012
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Cites 3 docs
Parimal vs Veena @ Bharti on 8 February, 2011
Section 15 in The Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955

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Punjab-Haryana High Court
Surjit Kaur Alias Sito vs Harmesh Pal on 19 April, 2012

F. A. O. No. 3477 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : F. A. O. No. 3477 of 2006

Date of Decision : April 19, 2012

Surjit Kaur alias Sito .... Appellant

Vs.

Harmesh Pal .... Respondent

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL

* * *

Present : Mr. Sudhir Pruthi, Advocate

for the appellant.

Mr. Padam Jain, Advocate

for the respondent.

* * *

L. N. MITTAL, J. (Oral) :

Surjit Kaur alias Sito has filed this First Appeal assailing order dated 07.02.2006 passed by learned Additional District Judge, Jalandhar, thereby dismissing application moved by the appellant for setting aside ex- parte judgment and decree of divorce dated 27.09.1999. Respondent Harmesh Pal, who is a police Constable, filed divorce petition under Section 13 of the Hindu Marriage Act, 1955 (in short - the Act) against the appellant-wife. Perusal of the divorce petition file F. A. O. No. 3477 of 2006 2

reveals that notice thereof was issued to the wife for 10.06.1999. The notice was received back with the report of refusal. The wife was then summoned by publication in Newspaper Daily (Punjabi Edition) namely Chardi Kalan, Patiala, for 04.08.1999. Notice was published in Newspaper and since the wife did not appear, she was proceeded ex-parte on 04.08.1999. After recording ex-parte evidence of the husband (respondent herein), the said divorce petition was decreed vide ex-parte judgment and decree dated 27.09.1999.

The wife moved application on 31.05.2000 for setting aside the ex-parte judgment and decree of divorce alleging that she was never served with summons in the divorce petition nor she ever refused to accept the summons. The husband had been treating her with cruelty and demanding more dowry and was also levelling allegations of adultery. The wife moved application to Senior Superintendent of Police, Kapurthala in May 1999 for taking action against the husband. However, no action was taken on account of influence of the husband being police official. Again, the wife moved application dated 03.04.2000 to Chief Minister and application to Senior Superintendent of Police, Kapurthala on 24.04.2000. Thereupon, the husband was summoned to Women Police Station, where he produced photocopy of ex-parte judgment and decree dated 27.09.1999 and thereupon, the wife, for the first time, learnt of the divorce petition and F. A. O. No. 3477 of 2006 3

decree passed therein, in the first week of May 2000. After obtaining certified copies of judgment and decree, the wife filed this application. The husband, in his reply, controverted the allegations made by the wife. It was also alleged that the application is time barred. Various other pleas were also raised.

Learned Additional District Judge, vide impugned order dated 07.02.2006, dismissed the wife's application for setting aside ex-parte judgment and decree of divorce. Feeling aggrieved, wife has filed this appeal.

I have heard learned counsel for the parties and perused the case file including file of the trial court.

Perusal of divorce petition file reveals that the address of the wife, as given in the divorce petition, was of Village Uchha Boharwala. However, summons of divorce petition issued to the wife for 10.06.1999 was allegedly served on the wife in Village Jainpur i.e. native village of the husband himself, when the wife allegedly refused to accept the summons. Then she was served by publication in Newspaper. The report of refusal was allegedly thumb marked by Banta Chowkidar. The husband has examined Tarsem RW-3, who is son of Banta Chowkidar. In his affidavit of examination-in-chief, Tarsem stated that he identified the signatures of his father on the refusal report as he had been seeing his father signing during F. A. O. No. 3477 of 2006 4 his life time. This entire evidence has been procured by the husband because the report of refusal was not signed by Banta, but purports to bear his thumb impressions and not signatures. The reason for Tarsem to depose falsely in favour of husband is not far to seek. He admitted that the husband is his nephew. It is thus apparent that false report of refusal of summons by the wife was procured. It is also significant to notice that according to Tarsem, the wife, at the time of refusal of summons by her, was residing in the house of Ramesh Pal, who is none else, but real brother of the husband. On the one hand, the husband had filed divorce petition against the wife alleging that she had deserted him and was residing in her parental house and on the other hand, she was sought to be served at the address of real brother of the husband himself in his own native village. It exposes the manipulations of the husband in procuring the ex-parte judgment and decree.

Service by publication in Newspaper cannot be said to be sufficient service. The trial court, while ordering substituted service by publication in Newspaper, did not even observe that the wife was intentionally evading service or that she could not be served in the ordinary course. Without recording such satisfaction, substituted service could not be ordered. Even otherwise, the wife, who is a rustic illiterate villager, could not have read the Newspaper in which the notice for her service was F. A. O. No. 3477 of 2006 5 published.

For the reasons aforesaid, I am satisfied that the wife-appellant was not served properly in the divorce petition, and therefore, ex-parte judgment and decree in question are liable to be set aside. As regards limitation, the wife has categorically asserted that she learnt of the ex-parte judgment and decree in question only in first week of May 2000, and therefore, application filed on 31.05.2000 for setting aside the ex-parte judgment and decree is within limitation. The wife has explained that she learnt of ex-parte judgment and decree when the husband produced copy thereof in Women Police Station, where he was summoned pursuant to complaint made by the wife. The husband, in his reply, has admitted that he had produced the copy of ex-parte judgment and decree in the Women Police Station. Consequently, the application moved by the wife is also proved to be within limitation.

Counsel for respondent-husband contended that after ex-parte decree of divorce, the husband re-married on 30.09.1999 and now has one child from the second marriage. Relying on judgment of Hon'ble Supreme Court in the case of Parimal vs. Veena @ Bharti reported as 2011 (2) RCR (Civil) 155, counsel for the respondent contended that in view of re- marriage of the husband and birth of a child from the second marriage, ex- parte decree of divorce should not be set aside. The contention is F. A. O. No. 3477 of 2006 6 completely misconceived and meritless. There is neither any pleading nor any evidence on record to substantiate the aforesaid contention raised by counsel for the respondent-husband. Judgment in the case of Parimal (supra) is not applicable to the facts of the instant case at all. In that case, the wife did not put in appearance despite service of summons by Process Server as well as by registered post and substituted service. In the instant case, however, there was no service of summons in the divorce petition on the wife at all. Secondly, in the case of Parimal (supra), the wife moved application for setting aside ex-parte decree of divorce after four years of passing of the ex-parte decree. In the instant case, the application was moved by the wife just eight months after the passing of ex-parte decree of divorce and within 30 days of acquiring knowledge thereof. Thirdly, in the case of Parimal (supra), the husband contracted second marriage two years after the ex-parte decree of divorce, whereas in the instant case, as per assertion of counsel for the respondent-husband, he contracted second marriage just three days after the ex-parte decree of divorce. The said second marriage is also hit by Section 15 of the Act, which stipulates that after decree of divorce, a spouse may re-marry after limitation for filing appeal has expired and no appeal has been preferred or appeal has been preferred and dismissed. In the instant case, however, the husband performed second marriage just three days after ex-parte decree of divorce, F. A. O. No. 3477 of 2006 7 without waiting for limitation period for filing appeal against ex-parte decree of divorce. It rather shows mala fide and misconduct of the respondent-husband. Thus, judgment in the case of Parimal (supra) has no applicability whatsoever to the facts of the case in hand. For the reasons aforesaid, I find that the appellant-wife has made out sufficient ground for setting aside ex-parte judgment and decree of divorce dated 27.09.1999. Finding of the trial court to the contrary is perverse and illegal and is based on misreading and misappreciation of evidence and is difficult to sustain. Accordingly, the instant First Appeal is allowed. Impugned order dated 07.02.2006 passed by learned Additional District Judge, Jalandhar is set aside. Application moved by appellant-wife for setting aside ex-parte judgment and decree of divorce dated 27.09.1999 is allowed and said judgment and decree are set aside. The trial court shall now proceed with the divorce petition in accordance with law. Record of the court below be sent back at once.

Parties are directed to appear before the trial court on 10.05.2012.

April 19, 2012 ( L. N. MITTAL ) monika JUDGE
The above judgement is for your reference hence the secon marriage is not valid