Mehboobun Nahar Milky vs Amarjeet Nayak And Another

Mr. Mohapatra, learned advocate appears on behalf of appellant, who is aggrieved by order dated 1st December, 2023 made by the family Court rejecting her application made under rule 10 in order I read with section 151, Code of Civil Procedure, 1908.

On query from Court Mr. Mohapatra submits, judgment and decree for divorce was on 26th October, 2022. It was made ex-parte against respondent no.2 herein. Said respondent was the wife in the divorce proceeding. She filed application for setting aside ex-parte decree on delay of 9 months and 9 days. In the meantime and after expiry of the statutory period in section 15 of Hindu Marriage Act, 1955, his client married respondent no.1 on 28th August, 2023. Hence, when the matrimonial proceeding stood restored on setting aside the ex-parte judgment and decree, his client being vitally interested, applied to be added as party.

He relies on judgment dated 19th February, 2020 of the Supreme Court in Criminal Appeal no.321 of 2020 (Krishnaveni Rai v. Pankaj Rai and another), paragraphs 34 to 37. He submits, declaration of law was that by reason of prescription of statutory period in section 15, it cannot be said that the marriage taken place after expiry of the statutory period in section 15 and appeal not filed within that time, is void.

We admit the appeal but are not inclined to direct issuance of notice of appeal. This is because the family Court was correct in rejecting the application of appellant for being added as party. We accept the submission regarding declaration of law made by the Supreme Court as relied upon by appellant on urging that she had got married to petitioner in the original divorce proceeding, after the statutory period, within which no appeal had been filed. We accept the submission to be on facts because by order dated 28th  August, 2023, setting aside the ex-parte judgment and decree the family Court noted that respondent-wife in the original civil proceeding had filed for setting aside ex-parte decree along with petition under section 5 of Limitation Act with a prayer to condone the delay of 9 months and 9 days. It is obvious that said respondent had availed of one of the two remedies available to her on suffering ex-parte judgment and decree dissolving her marriage. She having chosen to apply for setting aside had not preferred appeal. The bar under section 15 is against re-marriage prior to expiry of the prescribed period for filing appeal. We are convinced no appeal was filed within that time. Hence, appellant’s marriage held subsequently on 18th April, 2023 cannot be said to be void per Krishnaveni Rai (supra).

Notwithstanding aforesaid, on said ex-parte judgment and decree having had been set aside, the lis is between parties to the original civil proceeding. For purpose of adjudicating the civil proceeding, appellant is neither necessary nor a proper party. The controversy is between parties to the original proceeding. That however will not preclude the family Court from taking note of subsequent facts, as may be established by the parties in the fresh trial.

The appeal is disposed of as above.

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