SUNANDA CHAUDHURI Vs. ASHOK KUMAR CHAUDHURI

JUDGEMENT

(1.) This is an appeal against the ex-parte judgment and decree dated 19/4/89 passed by the Ld. Addl. District Judge, West Tripura at Agartala in Case No. T.S. 8 (Divorce) of 1988 decreeing dissolution of marriage between the appellant and the respondent under Section 13 of the Hindu Marriage Act, 1955 on the condition that the respondent shall pay a sum of Rs. l0.000/- for indepth consideration for welfare of the distressed lady.

(2.) The brief facts of the case are that the respondent filed the aforesaid suit in the Court of the Ld. Addl. District Judge, West Tripura stating therein that the marriage was solemnised between the appellant and the respondent as per Hindu rites in the year 1978. But soon after the marriage it became clear to the respondent that the appellant was not normal in her behaviour and that she refused to co-habit "with the petitioner and in fact there has been no co-habitation between the two parties. It was also alleged that the appellant was of unsound mind and that there has been no issue due to the wed-lock. On the grounds of abnormal behaviour of the appellant and of her unsound mind, a divorce for dissolution of marriage was sought under Section 13 of Hindu Marriage Act, 1955. Thereafter, the Addl District Judge accepted the petitioner and registered the case and issued notices to the appellant by order dated 27,75/88. But S.R. was received with the report that the appellant was not available and the respondent was directed to take further steps by 9/8/88. But no steps were taken further by the respondent on 8/9/88 and on 3/12/88, the suit was fixed on 18/1/89 for taking steps by the respondent. On 18/1/89, however, the respondent filed a petition for time to take steps which was allowed and the case was posted to 9/2/89 when the respondent filed a petition for substituted service which was allowed and the case was posted to 19/4/89 for S.R. Thereafter, the notice to the appellant was advertised in the Tripura Darpan dated 12/4/89. The appellant did not however appear in the Court on 19/4/89 when the case was heard and decreed ex-parte by the Ld. Addl. District Judge on the condition that for dissolution of the marriage under Section 13 of the Hindu Marriage Act, the respondent shall pay a sum of Rs. l0,000/- to the appellant for an in- depth consideration and welfare of the distressed lady. From the order sheet of Ld. Addl. District Judge it is found that on 19/4/89 a petition was filed by the respondent alongwith the Treasury Challan No. 11 dated 15/6/89 showing a deposit of Rs. 10.000/- and the Court passed orders stating therein that the amount should be paid to the appellant on her application with due identification.

(3.) When the appeal was taken up for hearing today, Mr. B. Das. Ld. Counsel for the respondent raised a preliminary objection to the maintain- ability of the appeal. He submitted that after the period of limitation for filing the appeal against the decree of divorce, the respondent has married for the second time, and hence the second marriage of the respondent was solemnised as permitted under Section 15 of the Hindu Marriage Act, 19SS. He further submitted that since the second marriage has already taken place as permitted under law, the present appeal filed by the appellant belatedly was not maintainable.