CHANDRASEKHAR PRASAD Vs. SONI NAGVANSHI

JUDGEMENT

(1.) This writ petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 31.1.2006, passed by the learned Principal Judge, Family Court, Bokaro in Civil Misc. Case No. 12/2001 setting aside the ex parte judgment and decree of divorce dated 19.5.2001, passed in Title Matrimonial Suit No. 43/2000 filed by the petitioner, and restoring the suit to its original file.

(2.) MR . R.N. Sahay, learned counsel for the petitioner, submitted that the impugned order is perverse. Referring to paragraph 3 of the evidence of A.W. -2 -Binda Prasad Chourasia ( father -in -law of the sister of the respondent), he submitted that A.W -2 admittedly got knowledge on 10.5.2001 about the matrimonial suit no. 43/2000 i.e. prior to the judgment passed therein on 19.5.2001, but no action was taken by him or the respondent. Referring to paragraph 4 of the evidence, he submitted that only on 30.5.2001, A.W -2 applied for the certified copy, which was received on 11.6.2001. He submitted that A.W -2 did not disclose any reason explaining the delay between 10.5.2001 and 30.5.2001. Referring to the evidence of A.W -1 -respondent, he submitted that she said in paragraph 5 that she got knowledge of the said matrimonial suit from A.W -2 when he went to the Court in connection with another case instituted by her parents. Mr. Sahay submitted that thus respondent got knowledge on 10.5.2001 but there is no explanation why the copy was applied after 20 days on 30.5.2001 after the judgment was delivered on 19.5.2001. He further submitted that actually the respondent had full knowledge about the said matrimonial suit but she deliberately avoided to appear therein and allowed the suit to proceed ex parte and therefore the finding that she had no knowledge of the said case is perverse. He further submitted that in fact the respondent herself filed a Matrimonial Case no. 17 of 2001 in the Family Court at Muzaffarpur for judicial separation and for alimony. Referring to the petition for amendment filed by her in the said case on 31.10.2006 and the order passed thereon on 7.2.2007, he submitted that taking into consideration the ex parte judgment passed in the present Matrimonial Suit no. 43 of 2000 and the factum of the second marriage of the petitioner, she was allowed to delete the prayer of judicial separation, as prayed by her. He further submitted that in the said case, she was granted interim alimony of Rs.1,000/ -per month during the pendency of that case, which is being received regularly by the respondent. He lastly submitted that the parties are living separately since 8.7.1999 and in view of the fact that the petitioner filed a case for divorce and respondent also filed a case for judicial separation and in view of the decree of divorce, she withdrew her prayer for judicial separation and confined the case to alimony, it has to be taken that both parties wanted separation and their marriage broke irretrievably and therefore no useful purpose will be served by setting aside the ex parte judgment of divorce and asking the parties to contest the present suit filed by the petitioner for divorce. He relied on the judgment reported in 2008 AIR SCW 5190Satish Sitole Vs. Ganga.

(3.) IT appears that several litigations were/are going on between the parties. Though, it is not possible to believe that respondent had no knowledge of the Matrimonial Suit No. 43/2000, but even if her contention that she had no knowledge about the said suit is accepted and the impugned order is allowed to stand, the effect will be that the respondent will be allowed to contest the said suit filed for divorce by the petitioner. The fact that -the respondent herself filed a suit for judicial separation and in view of the present decree of divorce, though ex parte, and the factum of second marriage contracted by the petitioner, she withdrew her claim of judicial separation and confined it to the alimony, goes to show that the respondent also wanted separation. It is not disputed that the parties are living separately since 8.7.1999. In these circumstances, no useful purpose will be served by allowing the parties to indulge in further litigation.