SANJAY SINGH Vs. GARIMA SINGH

JUDGEMENT

(1.) Leave granted.

(2.) With the consent of learned Counsel for the parties, this appeal was heard finally. The High Court in a proceeding under Article 227 of the Constitution of India which was converted from one under section 115 of the Code of Civil Procedure, has set aside an ex parte decree for divorce granted by the learned trial Judge in a suit alleged to be filed by the respondent-wife.

(3.) A few relevant facts leading to these proceedings may be stated. The appellant and the respondent got married at Allahabad on 14-12-1973. Out of that wedlock two daughters and a son were born. It appears that subsequently there was some estrangement between the spouses. The allegation of the respondent-wife is that the appellant-husband got filed a Civil Suit No. 78 of 1995 in the name of the respondent for getting divorce on the ground of desertion and cruelty on the part of the appellant. It appears that the said suit got hurriedly disposed of by an ex parte decree dated 27-3-1995 and thereafter the appellant-husband is said to have entered into a second marriage with another spouse on 21-4-1995. Having come to know about the same, the respondent-wife filed two proceedings. She filed a substantive Civil Suit. No. 271 of 1995 in the same Court of learned Civil Judge, Sitapur for a declaration that the ex parte decree was null and void as she had never filed the said suit for getting her marriage dissolved through the Court. She also filed an application under section 151 of the Code of Civil Procedure, before the trial Court alleging that the ex parte decree was null and void as she had never filed the said suit which is said to have got decreed ex parte. It is that application which was treated by the learned trial Judge to be not maintainable because the respondent had already filed a civil suit wherein all these disputed questions of fact could be examined on evidence.