MANU/MP/0148/1990

Equivalent Citation: I(1992)DMC 506, 1992(2)HLR588

IN THE HIGH COURT OF MADHYA PRADESH

Civil R. No. 395 of 1986
Decided On: 01.02.1990
Appellants: S.K. Bose
Vs.
Respondent: Premi Bose
Hon'ble Judges/Coram:
D.M. Dharmadhikari, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Ravish Agarwal, Adv.
For Respondents/Defendant: Alok, Adv.
JUDGMENT
D.M. Dharmadhikari, J.
1 . This revision under Section 115 of the Code of Civil Procedure by the
applicant/husband is directed against the order dt. 27/6/1986 of the matrimonial Court
setting aside the ex-parte decree of divorce passed against the wife in Civil Suit No. 3-A
of 1980.
2. The ex-parte decree of divorce was granted in favour of the husband on 4.10.1980.
Earlier the case was fixed before the Court 27.9.1980 and the case was adjourned
without objection, on the request of the Counsel for the wife. The case was adjourned
to 1.10.80 for evidence. On the date of evidence the wife as also her Counsel were
absent. The Court, therefore, preceded ex parte by examining the husband in witness
box, hearing the arguments and fixing the case for judgment on 4.10.80.
3 . An application for setting aside the ex-parte decree of divorce was filed on
24.10.1980 stating that the wife being absent on 27.9.80 had no knowledge of the
subsequent date, she tried to contact her Counsel late Shri Hirak Bhattacharya who had
gone to Jabalpur for some case and for a period of fortnight, even on his return, he
could not be contacted as he had fallen seriously ill and the relations of late Shri Hirak
Bhattacharya did not permit the non-applicant/wife to meet him. The Counsel later died.
Accepting the above case of the wife as constituting sufficient case, the Court set aside
the ex-parte decree of divorce order dt. 27.6.86, impugned in this revision.
4 . The applicant/husband had opposed the application for setting aside the ex parte
decree, firstly, on the ground that there did not exist any sufficient cause and it was
sheer negligence on the part of the non-applicant/ wife and her Counsel in not
attending the Court on the date fixed for evidence, i.e. 1.10.1980. Secondly, the
application was opposed on the ground that it had been rendered infructuous as the
husband after obtaining ex-parte decree of divorce, contracted a second marriage on
23.11.1980 with one Preeti Shrivastava and it was a valid marriage in accordance with
Section 15 of the Hindu Marriage Act. The matrimonial Court did not accept any of the

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grounds urged by the husband. The learned lower Court held that the facts proved by
the wife in the witness-box made out a sufficient cause in her favour the setting aside
the ex-parte decree. It was also held that in the absence of date of proof of second
marriage, the application for setting aside the ex-parte decree was not rendered
infructuous as a result of the so-called second marriage. The Court therefore held that
the decision of this Court report in MANU/MP/0055/1965 : A.I.R. 1965 M.P. 194, Mohan
Murari v. Kusum Kumari does not help the contentions raised by the husband.
5 . In the present revision by the husband the first submission of the learned Counsel
for the applicant is that the lower Court erred in holding that the wife had made out
sufficient cause for setting aside the ex-parte decree. My attention is invited to the
following observations of the lower Court in para 6 of the order:
"It is true that the explanation in her cross-examination about the preparation
and filing of affidavit is not convincing but that itself does not disprove the
facts contained in the present petition and stated on oath by the applicant in
this Court. The non-applicant / husband has not dared to controvert these facts.
He has avoided to submit himself to cross-examination. Thus, the applicant has
been able to establish the cause of her own and her Counsel's absence on
1.10.1980."
On the basis of the observations made above by the lower Court, the Counsel for the
husband submits that the statement of the wife was not found to be trustworthy in the
matter of preparation and filing of the affidavit and therefore the Court could not have
believed her cause as sufficient cause only on the ground that the husband did not enter
the witness-box. It is argued that facts stated for proving sufficient cause were not
within the personal knowledge of the applicant as he was not expected know what
transpired between the wife and her Counsel and it was not expected of the husband to
enter the witness-box and deny the same of which obviously he had no personal
knowledge. It is. therefore, submitted that the Court should not have raised an adverse
inference against the husband and in favour of the wife for the husband having not
entered the witness-box.
6. I have considered the above submission of the learned Counsel for the husband and
find that the argument has no force. The learned lower Court has merely commented on
the issue of filing of affidavit in the context of the oral statement of the wife in para. 3
of her deposition. Para. 3 of the deposition of the wife is to the effect that the
application for setting aside the ex-parte decree along with an affidavit were prepared
by the Counsel and signed by her. In the last part of her deposition, she denied that the
application and the affidavit were made on the same day. The above small discrepancy,
in the opinion of the lower Court, was not such as to discredit her entire testimony, on
the main issue of sufficient cause. I find no error in the appreciation of evidence on the
question of sufficient cause done by the lower Court. It may also be true that non-
entering of the husband in the witness-box was of no legal consequence and could not
raise any adverse inference against the wife. But on this Count along the finding arrived
at by the lower Court on the question of sufficient cause cannot be said to be vitiated by
any error of law or procedure and I am not inclined to interfere with that finding of the
learned lower Court. The first submission of the learned Counsel that there was no
sufficient cause proved before the Court for setting aside the ex-parte decree thus fails.
7. The second submission of the learned Counsel for the husband is that the application
for setting aside the ex-parte decree had been rendered infructuous because of his
second marriage on the expiry of the period of appeal against the decree and within the

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time permissible under Section 15 of the Act. The legal submissions in the light of the
decisions cited before by the parties on Section 15 of the Act need not be decided by
me in view of the peculiar and admitted facts of this case. The lower Court had noticed
that the husband had taken a plea of second marriage having been contracted by him
within the period permissible under Section 15 of the Act, but he did not enter the
witness box either to prove the fact of second marriage or the date of that second
marriage. In the absence of proof of the second marriage or the date of that marriage,
the application for setting aside the decree could not be said to be rendered infructuous.
Section 15 of the Act permits the parties to remarry after a decree of divorce is passed
and the period of appeal has expired or the appeal having been presented the same has
been dismissed. Section 15 of the Act reads as under :
"15. 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."
8 . In the case before me, the date of remarriage of the husband is stated to be
23.11.1980, but the lower Court rightly refused to acknowledge the fact of remarriage
on the ground that the fact and date of remarriage were not proved by the husband who
had not entered the witness-box in the proceedings for setting aside the ex-parte decree
of divorce. In such a situation I am, in fact, not called upon to decide the legal
contention raised by the Counsel for the husband before me that after passing of the ex-
parte decree of divorce the husband could remarry after the expiry of the period of
appeal and the proceedings for setting aside the ex-parte decree had been rendered
infructuous. The Counsel for the husband had placed reliance on a decision of the
Madhya Pradesh High Court reported in MANU/MP/0055/1965 : AIR 1965 M.P. 194,
Mohan Murari v. Kusum Kumari which was also relied upon by the lower Court in its
order. I may point out that the D S. decision of this Court in the case of Mohan Murari
(supra) has been overruled by the Supreme Court in MANU/SC/0513/1989, Lata Kamat
v. Vilas. The aforesaid decision of the Supreme Court infirmed the view of the earlier
decision of the Supreme Court in A I.R. 1967 S.C. 581, Smt. Chandra Mohini v. Avinash
Prasad and MANU/SC/0537/1988 : A.I.R. 1988 S.C. 839, Tejinder Kaur v. Gurmit Singh.
The M.P. view in case of Mohan Murari (supra) was dissented by the Madras High Court
in case of Vathsala v. N. Manoharam (MANU/TN/0226/1969 : A.I.R. 1969 Mad. 405).
The Madras view in Vathsala's case appears to have been referred to by the Supreme
Court in paras 6 and 8 of the judgment in case of Lata Kamat (supra) without
expressing any approval or disapproval of the same, but the view of the Division Bench
of the Madhya Pradesh High Court in case of Mohan Murari's case (supra) over ruled.
The decision of the Division Bench of the M.P. High Court in Mohan Murari's case
(supra) therefore, is no longer binding precedent and cannot at all render any
assistance to the husband in the present case in support of his submission that the bar
contained in Section 15 of the Act for the husband to remarry after passing a decree of
divorce is not applicable to proceedings for setting aside of ex-parte decree.
9. In the aforesaid two decisions of the Supreme Court in Smt. Chandra Mohini (supra)
and Lata Kamat (supra), the Supreme Court expressed the view that although the
Special Leave Petition under Article 136 of the Constitution is not expressly covered by
the provisions of Section 15 of the Hindu Marriage Act, but where a constitutional
appeal is made available, the husband cannot render an appeal infructuous by
remarriage during the pendency of the proceedings. I am of the opinion that the Madras
view in Vathala's case (supra) is a reasonable and preferable view which is in

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consonance with decisions of the Supreme Court. The principle applicable to Special
Leave Petitions under the Constitution should also be extended to pending proceedings
under the Act for setting aside the ex-parte decree of divorce between the parties and
instituted within the period prescribed under the Limitation Act. In the Madras case of
Vathsala (supra) the M.P. view in Mohan Murari's case (supra) was considered and in
dissenting from it, it was observed as under:
"It is true that the decision relied upon by the petitioner goes a long way to
support her. But, with great respect, I am unable to concur in that view. What
appears to me is that when an order of nullity of marriage is made and the law
allows an appeal as well as an application to set aside an ex-parte order and
actually these remedies have been resorted to, any act of the parties pending
final disposal of those remedies availed of cannot have the effect of rendering
them infructuous, so to speak. Where such remedies are provided from an
order, the order should be taken to be valid and in force, but only subject to
the result of the application to set aside the ex-parte order or the result in the
appeal. To hold otherwise would mean that by an act of the party, he can
successfully defeat the lawful remedy accorded to the aggrieved person".
10. The Supreme Court in the case of Lata Kamat (supra) has referred to the aforesaid
decision of the Madras High Court in Vathsala's case and held as under:
" Even though it may not have been unlawful for the husband to have married
immediately after the High Court's decree for no appeal as of right lies from the
decree of the High Court to this Court, still it was for the respondent to make
sure whether an application for special leave had been filed in this Court and he
could not by marrying immediately after the High Courts' decree, deprive the
wife of the chance of presenting a special leave petition to this Court. If a
person does so, he takes a risk and could not ask the Court to revoke the
special leave on that ground."
11. Considering the Madras view and the Supreme Court view in the afore-said cases,
in my opinion, the principles made applicable to special leave petitions could
reasonably, on some parity of reasoning, be extended to proceedings for setting aside
ex-parte decree of divorce, which is a remedy lawfully available to a wife aggrieved by
the ex-parte decree of divorce. I have already held above that in the present case even
on facts, the husband has not been able to make out a case for holding that as a result
of his remarriage, the proceedings under Order 9 Rule 13 of the Civil Procedure Code
for setting aside the ex parte decree had been rendered infructuous. In my view, the
legal contention raised by the husband has also no force in the light of the decisions of
the Supreme Court and the Madras High Court which I had discussed above.
12. Consequently, the revision has no force and is hereby dismissed but without any
order as to costs.

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