ABHIRAM MOHAPATRA Vs. DRAUPADI MOHAPATRA

JUDGEMENT

(1.) MR . J.M. Mohanty, learned counsel for the petitioner is present. None appears for the opposite party. Even, we adjourned this case to be taken up now, i.e., after recess, then also nobody appears for the opposite party.

(2.) THEREFORE , we hear the petitioner and this writ petition is disposed of in the following manner.

(3.) IT appears from the impugned order and also the contention of the petitioner that petitioner initiated the proceeding under Section 12 of the Hindu Marriage Act, 1955 (in short 'Act, 1955) to annul the marriage under Clause (a) of Sub -section (1) of Section 12. An ex parte decree of divorce was granted therein. Then the husband -petitioner filed application under Section 152, C.P.C., vide Misc. Case No.18 of 1981 to amend the decree from a decree of divorce to a decree of nullity of the marriage. In that respect, on the basis of the direction of the Additional District Judge, Rourkela in Civil Revision No.10 of 1997, such a decree was passed in favour of the present petitioner and against the opposite party. Mr. Mohanty, learned counsel for the petitioner states that no proceeding has been initiated by the opposite party as against that judgment and decree of nullity of marriage. He, however, agrees that his statement is based on the information received from the petitioner. 6. Mr. Mohanty argues that according to the provision in Section 125, Cr.P.C. a wife includes a woman, who has been divorced or has obtained a decree of divorce and has not re -married. According to him and rightly so, a person, who has obtained a decree of divorce or awarded with a decree of divorce under Section 13 of the Act, 1955, is eligible to claim for maintenance under Section 125. Since the annulment of a marriage and grant of a decree accordingly is distinguishable from that of a decree of divorce by dissolution of marriage, therefore, one of the spouses to the marriage, i.e., the wife cannot claim maintenance under Section 125, Cr.P.C. if there is a decree of nullity of marriage, because that is not a decree of divorce. In the above context the statutory position is absolutely clear. Since the marriage is null and void and accordingly avoided by a decree under Section 12 of the Act, 1955, the status of a divorced wife, as contemplated under Section 125, Cr.P.C., does not survive for woman covered by a decree under Section 12 of the Act, 1955. 7. Notwithstanding the aforesaid legal position, in this case before us, there is no conclusive evidence or acceptable evidence to accept that status or state of affairs. Admittedly, petitioner did not contest the proceeding under Section 125, Cr.P.C. and suffered an ex parte order. The document, which was filed before the learned Judge, Family Court, Cuttack, was the affidavit evidence of the opposite party relating to a decree of divorce. Under such circumstance, the impugned award of maintenance cannot per se be termed as an illegal order. Therefore, if the petitioner is interested to pursue the aforesaid contention so as to make the opposite party disentitle to the claim of maintenance, then he has to file application to set aside the impugned ex parte order of maintenance and may adduce evidence in the Court below in support of his contention. 8. Thus, we leave the matter at that stage with the observation that petitioner, if so legally advised, may file application to set aside the ex parte order, and if such application is filed within a period of two weeks together with an application under Section 5 read with Section 14 of the Limitation Act, then delay may not be the ground to refuse considering the application for setting aside the ex parte order, in as much as, facts are to be addressed properly and the evidence, if any, are to be appreciated legally so as to consider the claim of the applicant (i.e., wife) relating to her entitlement of maintenance or otherwise. 9. With the said observation, the writ petition is disposed of. Petition disposed of.