Meenu Shukla vs Pardeep Shukla

CM-4509-CII-2014

CM No. 4509-CII of 2014 has been filed seeking recalling of the order dated 24.01.2014 whereby the respondent was restrained from remarriage.

It is submitted by learned counsel for respondent Pardeep Shukla that in fact the respondent had already solemnized his remarriage on 06.10.2013. The photographs of the remarriage have been placed on record as Annexure A-2.

According to learned counsel for the appellant, the remarriage in fact has been solemnised by the respondent after passing of order dated 24.01.2014.

We have given out thoughtful consideration to the matter.

The marriage between the parties was solemnised on 11.12.2000. Thereafter, the respondent filed a petition for divorce on 26.07.2007. The appellant did not contest the petition for divorce despite notice of the same through publication. Accordingly, the appellant was proceeded against ex parte vide order dated 30.11.2007 and, thereafter, the impugned judgment and decree dated 01.10.2008 was passed whereby the petition of the respondent was allowed by the learned Additional District Judge, Faridabad.

The appellant then filed an application in terms of Order 9 Rule 13 read with Section 151 CPC on 3.3.2009 seeking setting aside the ex parte judgment and decree dated 01.10.2008. Her application was dismissed on 11.12.2012.

The appellant then filed the present appeal i.e. FAO No. 1020 of 2013 on 21.01.2013 seeking setting aside the order dated 11.12.2012 whereby her application under Order 9 Rule 13 read with Section 151 CPC was dismissed. She also prayed for setting aside the judgment and decree dated 1.10.2008.

There was delay of 16 days in filing the appeal which was counted from 11.12.2012, in terms of which the application of the appellant under Order 9 Rule 13 read with Section 151 CPC had been dismissed.

Notice of motion was issued on 14.3.2013 for 16.5.2013. Delay in filing the appeal was condoned on 11.9.2013. On the same day, notice was issued in CMM No. 41 of 2013 for grant of maintenance pendente lite.

Learned counsel for the respondent prayed for time to file reply in the CMM for maintenance and the case was adjourned to 15.11.2013. On the same date it was stated by learned counsel appearing for respective parties that there was possibility of amicable settlement between the parties. The matter was accordingly referred to the Mediation and Conciliation Centre functioning in the High Court premises to explore the possibility of compromise by an amicable settlement. The parties appeared before the Mediation Centre on 17.12.2013 and case before this Court was adjourned to 24.01.2014. The mediation proceedings were taken up on 17.12.2013, on which date none appeared on behalf of the respondent. Telephonic calls were made to the counsel for the respondent but he did not respond. The case before the Mediation Centre was, therefore, deferred to 23.01.2014. The respondent was directed to be informed through registered notice. Registered notice was not received back. The Mediator then on 23.1.2014 recorded that the respondent was not interested to participate in the mediation proceedings. The case was accordingly sent back to this Court for necessary action.

The case was taken on 24.01.2014, on which date none appeared for the respondent. Accordingly, on the said date an order was passed that in the meantime the respondent shall not remarry. The case was then adjourned to 18.3.2014. Learned counsel for the appellant was asked to convey the order restraining re-marriage of the respondent by registered post to him.

Thereafter CM No. 4509-CII of 2014 was filed by the respondent for recalling/modification of order dated 24.01.2014. The stand taken was that in fact the respondent had remarried on 06.10.2013.

The dispute between the parties is with regard to the fact as to whether the second marriage of the respondent was solemnised on 06.10.2013 as is alleged by the learned counsel for the respondent or whether it has been solemnised after 24.01.2014 as is alleged by learned counsel for the appellant. The same would have a bearing on the merits of the appeal as well. The parties have not been able to reach at an amicable settlement.

In the circumstances, we find no ground to modify the order dated 24.01.2014. The circumstance whether the marriage was solemnised before 24.01.2014 or thereafter would be considered at the time of final hearing of the appeal.

In the circumstances, CM No. 4509-CII-2014 is dismissed. There shall however be no prejudice to rights of the parties with regard to the fact for determining the actual date of the second marriage of the respondent.

FAO-1020-2013 (O & M)

Be listed as per roster.