VIRENDER KUMAR Vs. MAYA DEVI

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 10th September 2007 passed by learned adj whereby he allowed the application under Order 9 Rule 13 and set aside the ex parte decree of divorce dated 20th November 1996. The contentions of the petitioner are that the application under Order 9 Rule 13 of the CPC was made after a lapse of more than 8 years and the respondent had failed to give just and proper explanation of these 8 years. The trial court wrongly held that the petitioner had not disclosed that his petition under Section 13 (1) (a) and (b)of the Hindu Marriage Act had been dismissed by the Kerana District Court, muzaffarnagar, U. P. It is pleaded by the petitioner that summons of the petition were served upon the respondent who failed to appear in the Court and contest the petition and thereby rightly leading to passing of an ex parte decree. However, trial court did not take this fact into consideration and allowed the application. It is also contended that the trial court also did not consider the subsequent events that the petitioner has already re-married and was having a child from subsequent wedlock.

(2.) A perusal of the petition under Section 13 (1) (b) filed by the petitioner before the Court of Shri R. S. Verma, ADJ, Karkardooma Courts, would show that the petitioner had invoked the jurisdiction of the Karkardooma Court, delhi alleging that the petitioner was undergoing a training in National School of Drama, New Delhi in 1990 and was living in the hostel. The respondent, all of a sudden along with her brother came to Delhi saying that she had come to meet the petitioner. The petitioner then took a rented accommodation at F-136-B, mangal Bazar, Laxmi Nagar where the respondent stayed from 3rd September 1990 to 9th September 1990 and then left the matrimonial home. It is to be noted that the petitioner had already filed divorce petition in 1991 after the alleged stay of the respondent in Delhi before Kerana District Court at U. P and this divorce petition was dismissed in 1994. In this divorce petition, the petitioner had nowhere stated that the respondent, at any point of time, had come and lived in delhi with him for "6 days" in a rented accommodation. After the dismissal of divorce petition at Kerana Court at UP, the petitioner filed an appeal, which was pending. He withdrew the appeal and immediately thereafter filed the divorce petition in Delhi Court and took this plea of last resided together to invoke the jurisdiction of Delhi Court. Neither the marriage took place in Delhi nor the parties ever lived in Delhi as husband and wife. The wife had hotly contested the case filed by the petitioner in Kerana District Court at UP and the petitioner lost that case. The divorce petition in U. P. Was filed on the same ground of desertion as in Delhi. The petitioner in his divorce petition in delhi did not mention that he had withdrawn the appeal just 18 days before. The petitioner had preferred an appeal against the order of Kerana District Court, that appeal was withdrawn by the petitioner. He obtained an ex parte decree of divorce within three months thereafter by concealing all material facts. The learned trial court considered the earlier judgment passed by Kerana District court at U. P. Dated 12th December 1994 and observed that the Civil Judge had dismissed the petition of the petitioner by holding that the fact of desertion, as claimed by the petitioner, had no basis and it was the petitioner Virender kumar, who had never gone to his in-laws' house to fetch the respondent. The civil Judge had also held that the petitioner had failed to prove the cruel behaviour of the respondent (wife ).

(3.) IT is evident that the petitioner played fraud upon the Court. The divorce petition of the petitioner filed before Kerana District Court, U. P was dismissed, specifically holding inter alia that there was no desertion, as alleged by the petitioner. The petitioner then filed this second divorce petition before the Delhi Court on the same ground, which was not maintainable. The petitioner created jurisdiction of Delhi Court by taking the plea that the respondent had come to live with him for "6 days" in Delhi. It is quite obvious that this alleged stay of 6 days in Delhi was created just to invoke jurisdiction of Delhi Court. Even otherwise, merely living for 6 days in Delhi would not amount to "last resided together", to invoke jurisdiction. The last resided together would only mean that the parties had lived as husband and wife at a place and made the place as their home. If a wife comes to meet her husband, who is undergoing training at a place and goes back after a short stay of 6 days, that would not amount to last resided together. It is quite obvious that in order to obtain a decree by fraud, the petitioner created jurisdiction of Delhi Court and obtained a decree fraudulently. The Court, which passed the decree acted in a callous manner and did not bother to look into the petition and in a mechanical manner, without going into or appreciating the facts of the case, allowed the divorce petition. No effort was made to serve the petitioner, in proper manner. The Court below, who had granted divorce, had not even bothered to see the earlier decisions given by Kerana District Court at muzaffarnagar, UP and the plea taken by the petitioner before the Kerana district Court, Muzaffarnagar, UP. Before the Kerana Court, the petitioner had taken the plea that the respondent (wife), after two years of marriage, deserted him and went to her parental home with jewelery and never returned. The marriage in this case was solemnized on 10th May 1976.