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IN THE HIGH COURT AT CALCUTTA
Nishita Mhatre, Tapash Mookherjee, JJ.
Jharna Rani Ghosh alias Jharna Ghosh
Versus
Prabir Kumar Ghosh
F.M.A. No. 1061 of 1991 With C.A.N. No. 3776 of 2005
Decided On : 22.08.2014
DIVORCE - RESTORATION OF SUIT - SECOND MARRIAGE - VALIDITY - HINDU MARRIAGE ACT, 1955 - SECTION 15 - APPLICABILITY - INTERPRETATION - COURT'S DISCRETION - FINANCIAL SECURITY OF WIFE - BALANCE BETWEEN PARTIES' RIGHTS - LUMP SUM PAYMENT AS MAINTENANCE PENDENTE LITE.
Fact of the Case:
Wife filed an application under Order 9 Rule 13 of the Code of Civil Procedure to set aside an ex parte divorce decree, claiming she had no knowledge of the divorce proceedings. The divorce decree was granted in 1988, and the husband remarried in 1989 after the prescribed waiting period under Section 15 of the Hindu Marriage Act, 1955. The wife argued that the second marriage invalidated her rights to seek restoration of the divorce suit. The Trial Court dismissed the wife's application, holding that her rights were extinguished after the husband's remarriage. The wife appealed.
Finding of the Court:
The Court held that the husband's second marriage, which was contracted more than seven months after the ex parte divorce decree, was valid under Section 15 of the Hindu Marriage Act. The Court observed that the reduction in the waiting period for remarriage under the amended Section 15 indicated the legislature's intent to settle the rights of divorced parties promptly.
Issues: 1. Whether the wife's application under Order 9 Rule 13 of the Code of Civil Procedure was maintainable after the husband's remarriage. 2. Whether the husband's second marriage rendered the wife's rights to seek restoration of the divorce suit invalid.
Ratio Decidendi: 1. The Court interpreted Section 15 of the Hindu Marriage Act, 1955, and held that the waiting period for remarriage after divorce was reduced to ensure the prompt settlement of the rights of divorced parties. 2. The Court exercised its discretion to balance the rights of both parties, considering the long-standing breakdown of the marriage, the financial insecurity of the wife, and the existence of children from the husband's second marriage. 3. The Court held that the wife's rights were not extinguished by the husband's second marriage and allowed the appeal, affirming the Trial Court's order regarding maintenance.
Final Decision: The Court allowed the appeal and set aside the Trial Court's order dismissing the wife's application under Order 9 Rule 13 of the Code of Civil Procedure. The Court directed the husband to pay a lump sum amount of Rs. 1,00,000 to the wife as maintenance pendente lite and costs of litigation. The wife was granted the liberty to file an application for permanent alimony in an appropriate forum.
Tapash Mookherjee, J:
1. The present appeal is directed against the order No. 26, dated 19.03.1991 passed by the learned Additional District Judge, 1st Court at Howrah in Misc. Case No. 20 of 1989 arising out of Matrimonial Suit No. 2005 of 1989.
2. The facts leading to the present appeal briefly stated are as follows:-
3. The Appellant Smt. Jharna Rani Ghosh and the Respondent Sri Prabir Kumar Ghosh were married on 6th day of Jhaistha 1384 BS according to Hindu Rites and Customs. The parties had a peaceful conjugal life for sometimes after the marriage. Subsequently, matrimonial disputes developed between the parties as a result of which the Appellant/Wife left her matrimonial home with all her belongings in the month of October, 1978. The Respondent/Husband tried to call back the Appellant/Wife to their matrimonial home, but failed. So the Respondent/Husband filed a Suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 in the year 1980. The Appellant/Wife also filed an application in the year 1986 under Section 125 of the Code of Criminal Procedure praying for maintenance allowance for her.
4. The aforesaid Matrimonial Suit for restitution of conjugal right had been dismissed for default on 22.04.1988 and thereafter Respondent/Husband filed a Suit for divorce under Section 13 of the Hindu Marriage Act, 1955, on 29.09.1988 against the Appellant/Wife, before the Court of learned District Judge, Howrah being Matrimonial Suit No. 205/1988. The Appellant/Wife’s application for maintenance allowance under Section 125 of the Code of Criminal Procedure registered as Misc. Case No. 87 of 1986 was allowed ex parte on 11.01.1989 and the Respondent/Husband was directed to pay maintenance allowance at the rate of Rs. 250.00 (rupees two hundred fifty only) per month for the maintenance of the Appellant/Wife and the said maintenance allowance is being paid regularly as claimed.
5. Meanwhile, the Matrimonial Suit No. 205/1988 filed by the Respondent/Husband for divorce under Section 13 of the Hindu Marriage Act had been decreed ex parte on 12.12.1988 and the matrimonial tie between the parties had been severed by the aforesaid decree of divorce and thereafter the Respondent/Husband contracted a second marriage on 25.07.1989, i. e., after the period of appeal against the ex parte decree of divorce.
6. On 26.09.1989 the Appellant/Wife filed an application under Order 9 Rule 13 of the Code of Civil Procedure registered as Misc. Case No. 23 of 1989 for setting aside of the aforesaid ex parte decree of divorce on the ground that she had no knowledge about the decree of divorce passed against her ex parte as no notice or summons of the Suit had been served on her. In the month of September, 1989 the Appellant/Wife also filed a Criminal Case under Section 494 of the Indian Penal Code alleging bigamy against the Respondent/Husband. The aforesaid complaint under Section 494 of the Indian Penal Code had been dismissed under Section 203 of the Code of Criminal Procedure on 28.03.1990.
7. Learned Additional District Judge, 1st Court at Howrah dismissed the aforesaid application under Order 9 Rule 13 of the Code of Civil Procedure on 19.03.1991 on the ground that the application under Order 9 Rule 13 of the Code of civil Procedure was not legally maintainable since the Respondent/Husband by that time contracted a second marriage after the period for appeal against the decree of divorce passed ex parte and as such the second marriage of the Respondent/Husband was quite a valid marriage under Section 15 of the Hindu Marriage Act. Being aggrieved by and dissatisfied with such order of the learned Trial Court the Appellant/Wife filed the present appeal challenging the aforesaid order of the learned Trial Court.
8. The Appellant/Wife has also filed an application under Section 24 of the Hindu Marriage Act in this Court of appeal on 18.03.2005 claiming alimony pendente lite and expenses for the Suit. Some interim ord
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