Kiran Devi vs Kartar Chand and Another

S.S. Ahmad, C.J.—As per separate order passed today this appeal has been treated as revision u/s 115 of the Code of Civil Procedure.

Respondent No. 1 admittedly had married the applicant (Kiran Devi) but on 26.7.1991 he obtained an ex-parte decree of divorce u/s 13 of the

Hindu Marriage Act from the Court of District Judge, Jammu. The applicant thereafter filed an application for setting aside the ex-parte

proceedings against which respondent No. 1 filed objections.

During the pendency of the proceedings, respondent No. 2 filed an application for being, impleaded as a party in those proceedings on the

ground that respondent No. 1 had married her and she being he wife of respondent No. 1 was vitally interested in the proceedings. The application

was allowed by the District Judge, Jammu and respondent N0.2 was directed to be impleaded as a party in the proceedings vide order dated

19.7.1993. The applicant then filed an appeal in this Court which, as stated earlier, has been treated as a revision.

Learned Counsel for the petitioner has contended that the respondent No. 2 could not have been impleaded as a party in the proceedings as she

was not a party in the regular suit and moreover, under the J&K Hindu Marriage Act, only the spouse can file proceedings against each other and

not a stranger to the proceedings.

The ex-parte decree u/s 13 of the Hindu Marriage Act was passed by the trial Court on 26.7.1991. Applicant applied for setting aside the ex-

parte decree on attaining knowledge that the decree against her has been passed. Respondent No. 1 had in the meantime married a second wife in

as much as he had solemnised marriage with respondent No. 2 who gave an application for being impleaded as a party in the proceedings relating

to the setting aside of the ex parte decree.

Learned Counsel for the appellant has vehemently contended that under the Hindu Marriage Act a stranger to the proceedings could not have

been legally impleaded as a party in the case and that the application of respondent No. 2 who has since been impleaded in the proceedings as a

party ought to have been rejected.

Section 17 of the Hindu Marriage Act enables the divorced persons to marry again and provides as under:-

Divorced persons when 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.

A perusal of the above section would indicate that it is open to any part/to a marriage which has since been dissolved by a decree of divorce, to

marry again after the expiry of the period fixed for filing an appeal against the decree.

On the expiry of the period during which the appeal could have been filed against ex-parte decree annulling the marriage between respondent

No. 1 and the applicant, the respondent No. 1 married respondent No. 2 and the before she, namely respondent No. 2, became a necessary party

to the proceedings. It will be seen that if the ex-parte decree is set aside in the absence of respondent No. 2, the effect, so far as her marriage with

respondent No. 1 is concerned, would be disastrous inasmuch as her own marriage would immediately become questionable. Whether she was or

was not aware of the previous marriage of respondent No. 1 with the applicant is immaterial. What is material is that respondent No. 1 after having

obtained a decree of divorce from the competent Court could have married again after the expiry of the period fixed for the filing of appeal against

the decree and he did marry respondent No. 2. Once the marriage took place Between respondent No. 1 and respondent No. 2, the latter,

namely respondent No. 2, became vitally interested in the proceedings, and thus, to the divorce petition concerning the earlier marriage. She has,

therefore, for all intents and purposes, not only a proper party but also a necessary party within the meaning of Order 1 Rule 10 CPC and the

Court was justified in allowing her application for impleadment. There is no error in the exercise of jurisdiction by trial Court nor has the order

passed by the trial Court occasioned failure of justice.

The revision petition, in my opinion, has no merit and is dismissed.