Allahabad High Court
Rishabh Chaudhary vs Smt Sakshi Chaudhary on 13 May, 2024
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:85246-DB
Court No. - 29
Case :- FIRST APPEAL No. - 108 of 2024
Appellant :- Rishabh Chaudhary
Respondent :- Smt Sakshi Chaudhary
Counsel for Appellant :- Amish Kumar Srivastava,Raghuvansh Chandra
Counsel for Respondent :- Ashish Kumar Singh
Hon'ble Vivek Kumar Birla,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
1. Heard Sri Amish Kumar Srivastava, learned counsel for the appellant and Sri Ashish Kumar Singh, learned counsel appearing for the sole respondent.
2. Present appeal has been filed challenging the judgment dated 27.11.2018 and decree dated 21.12.2018 and order dated 27.11.2023 passed by Additional Principal Judge, Family Court, Meerut arising out of Case No. 723 of 2017 under Section 13(1)(iv) of Hindu Marriage Act, 1955.
3. On 7.2.2024 following order was passed:-
"1. Heard Sri Amish Kumar Srivastava, learned counsel for the appellant and perused the record.
2. Submission of learned counsel for the appellant is that earlier in point of time, the divorce petition filed under section 13 of the Hindu Marriage Act by the appellant herein being Matrimonial Case No. 2265 of 2017 was allowed ex parte on 01.02.2018 by the Judge, Family Court, Bangalore. It was informed that the divorce petition filed by the wife under section 13 of the Hindu Marriage Act before the Family Court, Meerut being Matrimonial Case No. 723 of 2017 was also allowed ex parte vide judgment dated 27.11.2018 i.e. subsequent to the decree of divorce already passed by Family Court, Bangalore and it is submitted that when the appellant came to know about this fact, he filed an application under Order 9 Rule 13 of CPC which was incorrectly rejected by Family Court, Meerut by the impugned judgment dated 27.11.2023.
3. Submission is that once a divorce decree has been granted by a competent court, a second decree of divorce could not have been passed by another court subsequently and in any case if the same was passed in ignorance, the same is liable to be recalled and relief, if any, can be claimed by the other party in the proceedings finalized earlier in point of time.
4. In view of the facts and circumstances of the present case and in view of the permanent alimony having been awarded in the impugned order dated 27.11.2018, we find it appropriate to issue notice to the sole respondent.
5. Accordingly, issue notice to the sole respondent by ordinary process as well as registered post/speed post pending admission.
6. Steps be taken within a week.
7. Put up this case as fresh on 05.3.2024."
4. Pursuant to the aforesaid order Sri Ashish Kumar Singh, learned counsel has appeared for the sole respondent.
5. The parties were orally advised to find out possibility of peaceful compromise, however, the parties are not willing for compromise.
6. Vide order dated 5.3.2024 the record of Suit No. 723 of 2017 and Misc. Case No. 80 of 2018 was called for from the Family Court, Court No. 2, Meerut.
7. At this stage, at the very outset, learned counsel for the sole respondent submits that he has no objection in case the present appeal is allowed and the order impugned herein dated 27.11.2023 rejecting application filed under Order 9 Rule 13 C.P.C. is set aside.
8. In view of the aforesaid, nothing remains to be considered on merits and in view of the statement so made by learned counsel for the sole respondent and that too after exploring possibility of peaceful compromise between the parties, which had failed, present appeal stands allowed. The impugned order dated 27.11.2023 is hereby set aside and the application filed by the husband paper no. 3-Ga under Order 9 Rule 13 C.P.C. stands allowed. Consequently, the impugned judgment dated 27.11.2018 granting ex-parte divorce is also set aside. The matter is remanded to the trial court to consider the same afresh.
9. Learned counsel for the parties stated that the parties shall not seek any unnecessary adjournment.
10. It is expected that the divorce petition which is pending since 2017 is decided as expeditiously as possible. The court below is directed to record reasoning in case any adjournment is granted to either of the parties and adjournment shall be granted on heavy cost.
11. Office is directed to remit the lower court's record, if possible, within a week.
12. With the aforesaid observations, present appeal stands allowed.
Order Date :- 13.5.2024
Lalit Shukla
