Decree of Divorce; Rajesh Kumar Vs. Pushpa Rani [Patna High Court, 16-09-2016]

Hindu Marriage Act, 1955 – S. 13 – Once a decree of divorce is passed and unless there is an appeal challenging the same, the decree subsists. Once there is no appeal or the period, for preferring appeal, expires or an appeal, having been preferred, is dismissed, the party can go for second marriage without any legal obstacle. Such a second marriage is always valid.

Hindu Marriage Act, 1955 – Ss. 5 & 11 – When the husband solemnized his second marriage after the decree of divorce, the second marriage, notwithstanding the fact that the ex parte decree of divorce has, now, been set aside, cannot be treated as a nullity.

Hindu Marriage Act, 1955 – S. 15 – the review petitioner had already married for the second time and had two children from his second marriage, the appeal against the decree for judicial separation, in the absence of any order of stay against the decree for judicial separation, had became infructuous and could not have been interfered with.

Decree for Judicial Separation


IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE JUSTICE SMT. NILU AGRAWAL ORAL

Date: 16-09-2016

Civil Review No.4 of 2016  IN MA 513 of 2009

Sri Rajesh Kumar son of Late Yog Narayan Prasad resident of village – Dhanuki Chandpura, P.S. Benipatti, District – Madhubani having local temporary residence at Flat No. 403, Amba Sada, I.A.S. Colony, Kidwaipuri, District – Patna….. …. Petitioner Versus Smt. Pushpa Rani wife of Sri Rajesh Kumar resident of Shanti Sadan, Shanti Marg, Mithapur, P.S. Jakkanpur, District – Patna….. …. Respondent

Appearance : For the Petitioner : Mr. Y.V. Giri, Sr. Advocate Mr. Ashish Giri, Advocate Mr. Pranav Kumar, Advocate For the Respondent : Mr. S.D. Sanjay, Sr. Advocate Mrs. Priya Gupta, Advocate Mr. Binod Kr. Singh, Advocate Ms. Vagisha Pragya Vacaknavi, Advocate

JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Whether dismissal of a Special Leave Petition by the Supreme Court against an order, passed in an appeal arising out of a decree granted for judicial separation, bar a petition for review of the appellate decree, whereby the decree for judicial separation stood set aside?

Subsequent to the granting of decree for judicial separation, when a marriage is dissolved by a decree of divorce and one of the parties after the decree of divorce had solemnized his marriage and fathered children, whether these facts are relevant for consideration at the time, when an appellate Court considers the sustainability of the decree for judicial separation?

What are the fall out or the effect, when a person, having received the decree for judicial separation applies, for divorce, the decree for dissolution is granted and he remarries and fathers children?

Whether these facts are relevant for consideration, in an appeal, which arises out of the decree for judicial separation, and whether these facts, if relevant, have a bearing on outcome of appeal?

Whether such a development, which is subsequent to the granting of a decree for judicial separation, is an aspect, which must necessarily be taken into account by appellate Court before it chooses to interfere with the decree for judicial separation?

These are, amongst others, some of the important questions, which the present review petition has raised.

2. The material facts, which have given rise to the present review application, may, in brief, be set out as under:

(i) The petitioner-husband made an application, under

Section 13 of the Hindu Marriage Act, 1955

(hereinafter referred to as „the Act‟), seeking a decree of divorce on the ground of cruelty and desertion. This application gave rise to Matrimonial Case No. 567 of 2007, in the Family Court, Patna. Attempts made for conciliation, during the course of matrimonial proceeding having failed on 25.04.2008, the learned Principal Judge, Family Court, Patna, made, on 22.07.2008, an interim order restraining the parties, i.e., the petitioner-husband and the respondent-wife, from visiting each other‟s house during the pendency of the matrimonial proceeding unless they allow each other‟s visit to their respective houses with free consent.

(ii) The respondent-wife herein challenged the order, dated 22.07.2008, before this Court in Civil Revision No.1181 of 2008. However, this Court, on 12.01.2009, while declining to interfere with the order, dated 22.07.2008, directed the learned Principal Judge, Family Court, Patna, to dispose of the matrimonial proceedings within three months.

(iii) Finally, the matrimonial proceedings culminated into a decree, dated 11.08.2009, for judicial separation instead of dissolution of marriage. As many as 14 (fourteen) instances of cruelty by the wife were cited in the matrimonial proceedings and 6 (six) more grounds of cruelty were evinced during the course of the evidence in support of the order of judicial separation passed by the learned Principal Judge, Family Court, Patna. The respondent-wife, thereafter, filed Misc. Appeal No.513 of 2009 against the decree for judicial separation, dated 11.08.2009. During the pendency of Misc. Appeal No.513 of 2009, this Court, too, made efforts for reconciliation in Misc. Appeal No. 513 of 2009, but the same failed.

(iv) A period of one year having elapsed since the decree for judicial separation had been passed and as there was no resumption of cohabitation between the parties to the marriage for a period of one year since after passing of the decree for judicial separation, the petitioner-husband instituted Matrimonial Case No. 646 of 2010, in the Family Court, Patna, seeking a decree for dissolution of marriage under Section 13(1-A)(i) of the Act on the ground that there was no cohabitation between the parties for the past one year since after the decree for judicial separation was passed.

(v) At the instance of the respondent-wife, the said Matrimonial Case No.646 of 2010 was transferred to the Court of learned Principal Judge, Family Court, Allahabad. Though it was at the instance of the respondent-wife that the Matrimonial Case No.646 of 2010 had been transferred to the learned Principal Judge, Family Court, Allahabad, the respondent wife had appeared in Matrimonial Case No.646 of 2010 and filed a written statement, but she, thereafter, abstained from the proceeding and the case, thus, remained unattended. Since respondent-wife defaulted in pursuing her case after having filed written statement, the learned Principal Judge, Family Court, Allahabad, proceeded ex parte in Matrimonial Case No. 646 of 2010. By the ex parte judgment and decree, dated 24.01.2013, the learned Principal Judge, Family Court, Allahabad, dissolved the marriage on the ground that by order, dated 11.08.2009, passed by the learned Principal Judge, Family Court, Patna, in Misc. Case No.513 of 2009, both the parties stood judicially separated for more than one year.

(vi) Thereafter, the petitioner-husband remarried, on 12.05.2013, after the expiry of the period of limitation for filing appeal, as envisaged by Section 28 of the Hindu Marriage Act, 1955, was over. From the marriage, which so took place, two children were born.

(vii) Aggrieved by the ex parte judgment and decree, dated 24.01.2013, the respondent wife filed Misc. Case No.11 of 2013, under Order 9 Rule 13 of the Code of Civil Procedure, in the Family Court, Allahabad. Following this application, the earlier ex parte judgment and decree for dissolution of marriage, dated 24.01.2013, aforementioned, came to be set aside by order, dated 18.10.2013, which, at the instance of petitioner-husband, has been impugned in the First Appeal No.100 of 2014 in the High Court of Allahabad, inasmuch as the decree for dissolution of marriage came to be set aside after the petitioner had, as already indicated above, remarried.

(viii) However, the Misc. Appeal No. 513 of 2009, which had arisen out of decree for judicial separation, was heard and by order, dated 23.07.2015, the decree for judicial separation granted on the ground of cruelty, by the learned Principal Judge, Family Court, Patna, was set aside. Patna High Court C. REV. No.4 of 2016 dt.16 -09-2016

(ix) Aggrieved by the order, dated 23.07.2015, passed by this Court, in Misc. Appeal No. 513 of 2009, the petitioner-husband preferred an appeal before the Supreme Court through Special Leave Petition (Civil) No.29992 of 2015, which was dismissed, on 30.10.2015, without assigning any reason therefore.

(x) The petitioner-husband has, now, filed this petition seeking review of the order, dated 23.07.2015, passed in Matrimonial Appeal No. 513 of 2009.

3. Broadly speaking, the petitioner-husband has sought for review of the order, dated 23.07.2015, aforementioned, primarily, on the ground that while hearing the appeal, it escaped the attention of the Court that the period of limitation for preferring appeal against the decree for dissolution of marriage having elapsed, the petitioner-husband had already remarried and had two children from his second marriage. These were such facts, which could not have been ignored inasmuch as any interference with the decree for judicial separation would not put the parties, to the decree for judicial separation, in the same position in which they were before the decree for judicial separation, was granted inasmuch as the parties to the decree for judicial separation, on the date of decree for judicial separation, were married to each other, whereas, since after the passing of the decree for judicial separation, a third party had entered the scene, third party being petitioner-husband‟s second wife and her two children. When Court cannot put the parties in the same position in which they were, if the decree for judicial separation is interfered with and set aside, it makes the appeal infructuous and the Court should not, it is contended, interfere with such a decree for judicial separation; more so, when there was no order of stay against the decree for judicial separation restraining the petitioner-husband or causing any impediment on his right to apply for divorce, though the question, whether he was entitled to the divorce or not, is altogether a different question. This apart, interference with the decree would not only render the second marriage illegal, but also render the two children, who where otherwise legitimate, as illegal children, causing, thus, irreparable harm and damage to two minor children, who are innocent and, secondly, there was enough material showing that the petitioner-husband had been subjected to mental cruelty by his wife and, therefore, on this ground, too, the order, dated 23.07.2015, allowing the Misc. Appeal No. 513 of 2009, needs to be reviewed.

4. We make it clear that we do not deem it proper to review judgment and decree, dated 23.07.2015, aforementioned, on the ground that there was enough materials proving that the respondent-wife had subjected the petitioner-husband to cruelty inasmuch as re-examination of the evidence for the purposes of determining if our finding, on the question of cruelty, had been correctly reached or not, would amount to rehearing of the appeal, which is not permissible in law. The only ground, therefore, of seeking review of the decree dated 23.07.2015, is: Whether this Court, in the light of the developments, which had taken place subsequent to granting of the decree for judicial separation, ought to have held that since there was no order of stay against the decree for judicial separation and, on the basis of this decree, the marriage having been dissolved by a decree of divorce, the petitioner-husband having already re-married, he having children, the appeal, in question, became infructuous.

5. We have heard Mr. Y.V. Giri, learned Senior Counsel, appearing for the petitioner-husband, and Mr. S.D. Sanjay, learned Senior Counsel, appearing for the wife- respondent.

6. Mr. S.D. Sanjay, learned Senior Counsel, appearing for the wife-respondent, has opposed the maintainability of the review application on the ground that the Special Leave Petition (Civil) No. 29992 of 2015, which the petitioner-husband had preferred against the order, dated 23.07.2015, passed in Misc. Appeal No.513 of 2009, setting aside the decree for judicial separation, having been dismissed by the Supreme Court on 30.10.2015, the order, dated 23.07.2015, passed in Misc. Appeal No. 513 of 2009, has attained finality and cannot be re-opened inasmuch as the order, dated 23.07.2015, has, according to Mr. S. D. Sanjay, learned Senior Counsel, merged into the order, dated 30.10.2015, passed by the Supreme Court in Special Leave Petition.

7. The resistance so offered at the threshold has been seriously controverted by Mr. Y.V. Giri, learned Senior Counsel, appearing on behalf of the petitioner- husband, by contending that dismissal of Special Leave Petition by the Supreme Court without assigning any reason therefor does not bar filing of review petition against the order, which was impugned in the Special Leave Petition inasmuch as doctrine of merger, contends Mr. Giri, learned Senior Counsel, does not apply to such a case. In support of this submission, Mr. Giri, placed reliance on the decision in