Telangana High Court

Sonali Siddharth Jain vs Neha Salecha on 24 November, 2023

Author: P. Sam Koshy

Bench: P. Sam Koshy

      THE HONOURABLE SRI JUSTICE P. SAM KOSHY

         Civil Revision Petition No.3383 of 2023

ORDER :

The instant Civil Revision Petition has been filed by

the petitioners under Article 227 of the Constitution of

India assailing the order dated 22.09.2023 passed in

Interlocutory Application No.427 of 2023 in Interlocutory

Application No.553 of 2021 in O.P.No.263 of 2019 on the

file of the Judge, Principal Family Court, City Civil Court,

at Secunderabad (for short, 'the impugned order').

2. Heard Mr. M.V. Pratap Kumar, learned counsel for

the petitioner.

3. Vide the impugned order, the Court below rejected

the I.A. that was filed by the petitioners herein seeking for

impleadment in Interlocutory Application No.553 of 2021.

4. The factual matrix in brief is that respondent No.1

and respondent No.2 got married on 27.02.2017. However,

the marriage did not last long and the two got separated in

April, 2017 itself. As a matter of fact, after the separation

had taken place there was a Memorandum of

Understanding signed between the respondent No.1 and ::2:: PSK,J crp_3383_2023

respondent No.2 on 08.05.2017 so far as the further steps

to be taken for divorce with mutual consent after the

stipulated period under law. The said divorce under

mutual consent could not materialize. Meanwhile, the

respondent No.2 moved O.P.No.263 of 2019 before the

Principal Family Court, at Secunderabad seeking a decree

of divorce from the respondent No.1. Thereafter, vide order

dated 16.09.2019, the respondent No.1 got proceeded ex

parte in O.P.No.263 of 2019. The said O.P. finally stood

decreed in favour of respondent No.2 awarding decree of

divorce.

5. Thereafter, there was no appeal preferred by the

respondent No.1 nor was there any steps taken to set aside

the ex parte decree. That after a period of more than two

(02) years, the 1st respondent has filed Interlocutory

Application No.553 of 2021 under Order IX Rule 13 of Civil

Procedure Code, 1908 praying for setting aside of the ex

parte decree dated 16.09.2019. In the interregnum, the 2nd

respondent is said to have got married with the present

petitioner No.1 on 18.12.2019, and thereafter, the

petitioner No.2 has been born during the wedlock between

petitioner No.1 and respondent No.2. The said ::3:: PSK,J crp_3383_2023

Interlocutory Application No.553 of 2021 is still pending

consideration before the Court below. It is in this I.A. that

the present petitioner No.1 had filed yet another I.A., viz.,

Interlocutory Application No.427 of 2023 praying the Court

below to implead her in the main O.P. pending before the

Court below. Vide order dated 22.09.2023, the Court

below dismissed the said application.

6. Aggrieved, the present Civil Revision Petition has

been filed by the petitioners.

7. Learned counsel for the petitioners contended that

though the respondent No.2 (i.e., husband of petitioner

No.1 herein and the ex-husband of respondent No.1) is

defending the case on its merits. However, for the reason

that there is a subsequent marriage that had taken place

between respondent No.2 and petitioner No.1 and a child

had also born to them during their wedlock, in the event if

the said Interlocutory Application No.553 of 2021 filed

under Order IX Rule 13 of Civil Procedure Code, 1908 by

the respondent No.1 is allowed, it may have an adverse

bearing on the marital life of petitioner No.1 and

respondent No.2. Therefore, on this ground, the petitioner

No.1 had moved an application, viz., Interlocutory ::4:: PSK,J crp_3383_2023

Application No.427 of 2023 before the Court below seeking

for impleadment so that the subsequent marriage and the

developments could be brought to the notice of the Court

below and which now stands rejected by the Court below.

8. Learned counsel for the petitioners, at this juncture,

submits that all that the petitioner No.1 seeks for is a right

of audience in Interlocutory Application No.553 of 2021.

The limited intention on the part of the petitioner is only to

highlight the subsequent marriage that took place much

beyond the period of limitation of appeal against the order

dated 16.09.2019. He further submits that all that the

petitioner No.1 at this juncture wants is for a direction to

the Court below to permit her to address the Court below

on the aspect of subsequent developments as such.

9. In support of this contentions, learned counsel for

the petitioners further relied on the decisions in Karuna

Kansal vs. Hemant Kansal1 and A. Raja Sundari vs.

Suresh Kumar 2.

10. Some of the undisputed facts in the present case and

also from the submissions made by the learned counsel for

1 (2019) 6 S.C.C. 581 2 2016 (2) Law Weekly 333 ::5:: PSK,J crp_3383_2023

the petitioners, it appears that the respondent No.1 and

respondent No.2 got married on 27.02.2017 and because of

strained relationship they got separated and were staying

separately. Meanwhile, the O.P., viz., O.P.No.263 of 2019

was filed by the respondent No.2 before the Principal

Family Court, at Secunderabad seeking for a decree of

divorce. In the said O.P., the respondent No.1 herein was

the sole-defendant who was proceeded ex parte and a

judgment and decree was passed on 16.09.2019 in favour

of respondent No.2. It is this setting aside of the

respondent No.1 as ex parte which is challenged in the

Interlocutory Application No.553 of 2021 and which is

pending for consideration before the Court below.

11. The point for consideration in the present Civil

Revision Petition is whether the petitioner No.1 is a

necessary party to be impleaded in Interlocutory

Application No.553 of 2021 in O.P.No.263 of 2019.

12. As is evident from the proceedings in the preceding

paragraphs, the issue pertains to the ex parte judgment

and decree which has been passed by the Family Court on

16.09.2019, i.e., the said ex parte proceedings drawn

between the respondent No.1 and the respondent No.2. All ::6:: PSK,J crp_3383_2023

that in Interlocutory Application No.553 of 2021 needs to

be considered by the Court below is whether the initiation

of ex parte proceedings against the respondent No.1 was

proper, legal and justified. Further, whether the

respondent No.1, who was proceeded ex parte, was

effectively served notice before proceeding ex parte or not.

13. For considering the said issue, this Court is of the

firm view that the requirement of petitioner No.1 to be

impleaded as a necessary party in a proceeding under

Order IX Rule 13 of Civil Procedure Code, 1908 may not be

relevant. True it is that the status of petitioner No.1 is that

of the wife of respondent No.2 and from the said

relationship there also seems to be a child born.

Nonetheless, so far as the legal issue put for consideration

before the Court below, is that of the proceedings of ex

parte by the Court below which is sought to be set aside in

I.A.No.553 of 2021.

14. The only point on the part of petitioner No.1 which

strikes the conscience of this Court is the fact that in the

eventuality of the ex parte decree getting set aside, there

could be a change in the status of the petitioner No.1 as

the decree of divorce itself would get set aside and ::7:: PSK,J crp_3383_2023

consequently the marriage also entered between the

respondent No.2 and petitioner No.1 would be at stake.

15. In the given factual backdrop, it would be more

appropriate if the Court below can take into consideration

the decision of the Madras High Court in A. Raja Sundari

(2 supra), wherein the learned Single Judge held at

paragraphs Nos.10 to 14 as under, viz.,

"10. When the right to remarry arises, as per law, is the issue that has been addressed in the above decisions.

11. Section 15 of the Hindu Marriage Act, 1955, which deals with right to remarry reads as under:

"when a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree, or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again."

11.1. It is appropriate to highlight the amendment made in Section 15 of the said Act during the year 1976 and the purpose behind this amendment. Before such amendment there was a proviso to the Section, which laid down that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year ::8:: PSK,J crp_3383_2023

has elapsed from the date of the decree in the Court of the first instance.

11.2. The reduction of the waiting period for remarriage by the aforesaid amendment itself suggests that the intention of the legislature is to settle the rights of the Husband and Wife after divorce permanently, at the shortest period of time. In fact, the fate of a couple after divorce should not be kept hanging for a long and indefinite period. Such an uncertainty does not help either of the parties in the marriage in any way. Therefore, the intention of the legislature which encompasses public policy and social interest should also be taken into account.

12. By virtue of the remarriage, now the interest of second wife has intervened and the Court is expected to take cognizance of subsequent event also in deciding the application for restoration / setting aside ex parte decree, provided fairness to both side is observed.

13. It has been held so, in the decision of Hon'ble Supreme Court in Venkateswaralu Vs. Motor and General Traders 3 and the relevant observation reads as under:

"For making the right or remedy, claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments

3 AIR 1975 SC 1409 ::9:: PSK,J crp_3383_2023

subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed."

14. It would be relevant to consider the case of Surendra Kumar vs. Krian Devi 4, where under, it has been held that when there is a valid remarriage and when the right of the second wife intervenes, the petition to set aside the exparte decree cannot be allowed and the observation is thus :

"6. It has not been disputed before me that after passing of the exparte decree in favour of the petitioner by the Distt. Judge on 11-8-1992, the petitioner contracted a second marraige after four months. In such a situation, the important question that arises for determination is whether the ex parte decree can be set aside?"

7. This question arose in Harjeet Singh v. Guddi's 5 case, and it was held by this Court that when second valid marriage is contracted, it is in the interest of justice to dismiss the application for setting aside the ex parte decree for divorce. Again the same question was considered in Smt. Shimla Devi v. V. Kiran Kumar's case 6, and it was held that by contacting

4 AIR 1997 Raj 63 5 (1987) 1 Rajasthan LR 520 6 (1994) 3 WLC 519 ::10:: PSK,J crp_3383_2023

a second marriage, the interest of second wife intervenes."

16. Similarly, the Hon'ble Apex Court in Karuna Kansal

(1 supra), held at paragraph Nos.7 to 10 as under, viz.,

"7. The appellant herein is the second wife of respondent No.1 (husband). It is the case of the appellant that after passing of the ex parte decree for dissolution of marriage of respondent No.1 with respondent No.2 and expiry of period of limitation for filing appeal, respondent No.1(husband) entered into matrimony with her (appellant). On the other hand, respondent No.2 (first wife of respondent No.1) filed the aforesaid appeal of which the appellant had no knowledge, but the fact of respondent No.1 having married the appellant was indeed stated before the High Court. However, when respondent No.1 stated that she was having no problem with the appellant, the High Court set aside the ex parte decree passed on 23.08.2003 in C.S. No.09A of 2002 and directed that, "the parties shall live together as husband and wife." The appellant herein (second wife of respondent No.1), on coming to know of the aforesaid order dated 09.08.2011 passed by the Single Judge of the High Court in M.A. No.709/2005, filed review petition (R.P. No.48 of 2014) before the High Court. The Division Bench of the High Court, by order dated 17.10.2014, dismissed the said review petition. Challenging both the orders, the appellant has filed the present appeals by way of special leave in this Court.

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8. Heard Mr. A.K. Chitale, learned senior counsel for the appellant and Ms. Pankhuri and Mr. S.K. Verma, learned counsel for the respondents.

9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow these appeals, set aside the impugned orders and remand the case to the High Court for deciding the miscellaneous appeal afresh on merits in accordance with law.

10. The need to remand the case has occasioned because we find that the appellant was not made a party to the appeal and nor she was heard by the High Court."

17. Coming to the instant case, since Interlocutory

Application No.553 of 2021 has come into consideration

before the Court below on 28.11.2021, this Court is of the

considered opinion that it would be in the larger interest of

justice if the Civil Revision Petition at this juncture is

allowed, permitting the petitioner No.1 to be impleaded as

respondent in Interlocutory Application No.553 of 2021

pending before the Court below for the sake of objecting

the said I.A. in the light of the subsequent developments

that have transpired.

18. It is made clear that, the petitioner No.1, if at all she

intends to submit a reply to Interlocutory Application ::12:: PSK,J crp_3383_2023