BARSHA ARORA Vs. SATISH KUMAR ARORA

JUDGEMENT

(1.) An absorbing question arises in the present Second Appeal. If a husband has obtained an ex-parte decree for divorce wife and the first appeal by the wife is dismissed and thereafter the husband remarries after the period of limitation for filing Second Appeal and the additional period for obtaining certified copy, etc, is over, should the second appeal by the wife filed before this Court after allowing her benefit of Section 5 of the Indian Limitation Act be dismissed as infructuous on account of the said remarriage of the husband or not ?

(2.) The facts are that suit No. 19 of 1981 was filed by Satish Kumar Arora (hereinafter referred to as the husband) against Smt. Barsha Arora (hereinafter referred to as the wife) for a decree of divorce under Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act). It is alleged that there was another suit filed by the wife under Section 9 of the Act for restitution of conjugal rights filed earlier than the suit of the husband and both the suits were consolidated. For the purposes of the present appeal the details of the suit by the wife are not necessary. Suffice it to say that on 29.9.88 the trial Court directed that the husband's suit be proceeded with ex-parte. In the ex-parte proceedings following the said order, the husband's evidence was taken on 3.11.1988 and the evidence was closed. Some applications were moved by the wife for recalling of the ex-parte order. However, the trial Court by its order dated 25.2.89 dismissed the restoration application and passed the ex-parte decree in the divorce suit filed by the husband. Wife's first appeal before the 11 Addl. District Judge, Varanasi, was filed within time but dismissed on 25.1.1990. A second appeal was filed in this Court on 12.4.1990 along with an application under Section 5 of the Indian Limitation Act on which application notices were issued by this Court. It may be remembered that the stamp Reporter of the Office of this Court reported that the second Appeal was within time only till 8.4.1990. The matter was listed on 4.12.1990 when this Court condoned the delay in filing the second appeal with leave to respondent to agitate the question of condonation of delay on merits again after service. It was directed in the order dated 4.12.1990 that the appeal will be listed for admission and final disposal on the date fixed. In the meantime the husband put in appearance and apart from challenging the order of condonation of delay, he raised a preliminary objection about the maintainability of the appeal on the ground that he had remarried on 10.4.1990 and the appeal be dismissed as infructuous. Counter and rejoinder affidavits have been exchanged and the learned counsel for the parties have filed written arguments on the preliminary objection and it is agreed that if the objection is upheld the appeal shall stand dismissed under Order-XLI Rule XI C.P.C. on the ground that it has become infructuous. Sri Sidheshwari Prasad, learned counsel for the appellant-wife has strenuously argued that the words 'the time for appealing' occurring in Section 15 of the Act would include the extended time which the appellant got by getting her application under Section 5 of the Indian Limitation Act allowed. In order to lend support to this argument he has placed reliance on the case of Smt. Lata Kamat v. Vilas (A.I.R. 1989 SC. 1477) Sri B.D. Mandhyan, the learned counsel for the respondent-husband has however, placed reliance on the Supreme Court decision reported in Smt. Chandra Mohini Srivastava v. Sri Avinash Prasad Srivastava and Anr. (A.I.R. 1967 S.C. 581). However, for the reasons in the following paragraphs it is difficult to apply either of the rulings on the facts of the present case.

(3.) It is notable that Section 15 of the Act was transformed into a new look by marriages Laws (Amendment) Act, 1976 (Act No. 68 of 1976) where by its 'proviso' was dropped. There used to be a bar of one year from the date of decree on 'remarriage' under the old 'proviso' but in view of the aforesaid amendment, either party to the marriage can remarry anytime after the decree of divorce is passed if there is no right of appeal. It there is a right of appeal against the decree passed, either party can remarry only after the time for appealing by the aggrieved party has expired without filing of an appeal or the appeal has been filed but has been dismissed. It may also be remembered that under Section 28 of the Act, the execution of the decree or the operation of the order appealed against may be stayed by the appellate or second appellate Court.