Monal Sharma @ Mishra vs Siddhartha Mishra
2023 Latest Caselaw 11554 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                        MATA No.131 of 2023

Monal Sharma @ Mishra                  .....                              Appellant
                                                     Mr.Bibhuti Bhusan Choudhury,
                                                                         Advocate
                                       Vs.
Siddhartha Mishra                      .....                              Respondent

           CORAM:
                         JUSTICE SAVITRI RATHO
                          JUSTICE M.S.SAHOO
                                              ORDER

22.09.2023 Order No. 1. This matter is taken up through hybrid mode.

03.

2. This appeal has been filed by the appellant challenging the order

dated 15.11.2022 passed by the learned Judge, Family Court, Bargarh

in CMA No.01 of 2018, where the application filed under Order-IX,

Rule-13 of C.P.C. by the respondent-husband for setting aside the

judgment and decree passed by the said Court on 31.08.2017 and

20.09.2017 respectively in MAT Case No.9-10 of 2017, has been

allowed.

3. By the judgment dated 31.08.2017, the learned Judge, Family

Court, Bargarh had allowed the application under Section 13 (1) of the

Hindu Marriage Act by the appellant, ex parte and dissolved the

marriage between the appellant and respondent by a decree of divorce

awarding Rs.40.00 lakhs to the appellant towards permanent alimony.

4. Mr.B.B.Choudhury, learned counsel for the appellant submits

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that after passing of the decree of divorce, the appellant has got

married on 24.04.2018 and has been blessed with a daughter. She has

got remarried after the statutory period for filing the appeal had

expired. He further submits that if the Civil Proceeding is restored, the

appellant will be seriously prejudiced because she has acted upon the

decree of divorce and has remarried.

5. Holding that the respondent did not have the opportunity to

contest the petition for divorce and should be given a chance to do the

same, the learned Judge, Family Court has allowed the CMA and set

aside the ex parte judgment and decree dated 31.08.2017 and

20.09.2017 respectively. Perusal of the impugned order reveals that the

learned Judge, Family Court, Bargarh has allowed the CMA as it

found that the notice had not been "served sufficiently" and had been

sent in an incorrect address to the husband.

6. There is no infirmity in the finding in the finding or reasoning of

the learned Judge, Family Court Bargarh. But in view of the

subsequent development (re-marriage of the appellant) if the decree of

divorce is set aside, the appellant will be seriously prejudiced. But as

regard the award and calculation of the amount of permanent alimony,

we think that the respondent deserves to be heard by the learned Judge,

Family Court afresh and hence while we set aside the order dated

15.11.2022 so far as it relates to setting aside the decree of divorce, we

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make it clear that the learned Judge, Family Court will confine the

Civil Proceeding only to the consideration of grant of permanent

alimony. We also clarify that none of the findings in the ex parte

judgment regarding demand of dowry can be used against the

respondent in any other proceeding unless the same is proved in

accordance with law. Both parties shall co-operate for early disposal

of MAT Case No.9-10 of 2017.

7. The Appeal is accordingly disposed of.

8. As the appeal is disposed of without issuing notice to the

Respondent, he is given liberty to approach this Court in case there has

been suppression of any material fact by the appellant.

9. Urgent certified copy of this order be granted as per rules.

(Savitri Ratho) Judge

(M.S.Sahoo) Judge Bichi

Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 27-Sep-2023 18:32:22