JAYANTI JENA Vs. FAMILY COURT, CUTTACK

JUDGEMENT

(1.) Appellant is the wife of respondent. She had filed an application under Section 9 of the Hindu Marriage Act before the learned Judge, Family Court, Cuttack in Civil Proceeding No. 494 of 2001 for restitution of conjugal rights. After service of notice, respondent appeared and filed written statement stating therein that a decree of divorce has already been passed between the parties on 5.5.2007 in Civil Proceeding No. 108 of 2001 and, therefore, application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights is no more maintainable. Accepting the contention of the respondent that there has been a decree of divorce between the parties, the application filed by the appellant under Section 9 of the Act for restitution of conjugal rights was dropped as not maintainable. Challenging the said order, this appeal has been filed.

(2.) Shri Das, learned Counsel appearing for the appellant submitted that the respondent had filed Civil Proceeding No. 108 of 2001 seeking for a decree of divorce but no notice was served in the said case on the appellant. Some one forging the signature of appellant filed vakalatnama in the said proceeding and did not contest the proceeding, as a result of which, an ex parte decree has been passed in the said case. Coming to know about such decree after filing of the written statement in Civil Proceeding No. 494 of 2009, the appellant filed Misc. Case No. 17 of 2005 to set aside the said ex parte decree of divorce passed in C.P. No. 108 of 2001. The said Misc. Case was dismissed for non-prosecution and another Misc.Case bearing No. 98 of 2006 was filed for restoration of Misc. Case No. 17 of 2005. The said Misc. Case was dismissed on 8.10.2007. According to the learned Counsel for the appellant, any fraud committed on the Court in a proceeding can also be adjudicated in a collateral proceeding. In this connection, reliance has been placed by the learned Counsel for the appellant on a decision of the Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu v. Jagannath and Ors., 1994 AIR(SC) 853. The learned Counsel for the respondent submitted that in Civil Proceeding No. 108 of 2001, the appellant had entered appearance and she having not taken any further step, an ex parte decree has been passed. The said decree was not challenged in appeal and the application filed under Order 9 Rule 13 C.P.C. for setting aside the said ex parte decree was also dismissed for non-prosecution. The said ex parte decree having attained finality, the respondent has already taken a second wife and, therefore, there is no question of restitution of conjugal rights at this stage.

(3.) In order to find out as to whether the appellant had entered appearance in Civil Proceeding No. 108 of 2001 or not, we called for the records of the said case and found that signature of the appellant appearing in the vakalatanama completely differs from the signature appearing in the vakalatanama filed by her in this appeal. Prima facie it appears that she had not entered appearance in the said proceeding and vakalatnama had been filed on her behalf by impersonating her. From the order sheet, it appears that by the time the said vakalatnama was filed, notice had not been served on the appellant. These two circumstances create a doubt in the mind of the Court as to whether the appellant had been served with any notice in the said proceeding in which ex parte decree has been passed by the Court. Now the question that arises for consideration is whether in this proceeding, the Court can look into the alleged fraud committed in a collateral proceeding. In the decision referred to above in the very first paragraph, the Hon'ble Supreme Court observed in the following manner: