N. V. ANJARIA, J.

1. Invoking the jurisdiction of this Court under Article 227 of the Constitution, the petitioner-husband has filed the present petition seeking to set aside order dated 08th September, 2016 below Exh.73 passed by leaned Principal Senior Civil Judge, Kalol in Hindu Marriage Petition No.46 of 2009. By the said application, what was prayed before the court below was to allow the Hindu Marriage Petition, which prayer was rejected and that has resulted into the present Revision Application.

2. Stating the gist of application Exh.73 and the prayer therein, it was submitted by the petitioner-applicant that since he had re-married after the ex-parte decree of divorce dated 11th February, 2010 passed in his Hindu Marriage Petition (HMP), leading to irreversible situation, the HMP was required to be allowed.

3. The attendant facts are that the marriage between the petitioner-husband and the respondent-wife was solemnised on 26th January, 2008. On 19th September, 2009 petitioner-husband filed HMP No.46 of 2009 seeking divorce on the ground of cruelty. According to the say of the petitioner-husband, in May, 2008 the wife had left the matrimonial home out of her own volition, whereafter on account of the intervention of the elder family members, the spouses stayed together till 08th June, 2008 at Ahmedabad, but, as the case of the husband runs, the wife again left the matrimonial house on 04th July, 2008.

3.1 The aforesaid HMP filed by the husband came to be allowed ex parte on 11th February, 2010 and the decree of divorce was drawn. The petitioner-husband re-married on 21st May, 2010. According to the respondent-wife, she came to know on 19th July, 2010 about the ex parte decree in course of another collateral proceedings pending between the parties under the Domestic Violence Act, 2005, when the divorce decree was produced in the said proceedings. On 11th August, 2010, the wife filed application to set aside the ex parte decree and to condone the delay.

3.2 The application to set aside the decree was allowed on 10th May, 2011. The decree for divorce which was passed, came to be set aside and the HMP was restored to file. The said HMP is presently pending. On 16th April, 2016 application Exh.73 was given by the petitioner-husband, in which it was stated the petitioner had re-married and two children were born out the settlement. It was prayed therefore to allow the HMP. The rejection of the said prayer is the order impugned herein.

3.3 In application Exh.73, the case of the petitioner was that the second marriage was contracted after the statutory period of appeal was over and that the respondent-wife was within the knowledge about the second marriage of the petitioner. The knowledge of the respondent-wife was sought to be attributed on the basis that wife had initiated the proceedings under the Domestic Violence Act as well as had filed criminal complaint. It was the case and contention that the judgment and decree for divorce having been passed on 11th February, 2010 and since the statutory period for preferring appeal was over, as envisaged under Section 15 of the Hindu Marriage Act, 1955, it was permissible and legal for the petitioner to re-marry.

3.4 The petition was contested by the respondent-wife, who in her affidavit-in-reply, contended that the conduct on part of the petitioner-husband in obtaining ex parte decree of divorce was fraudulent, that the decree was obtained behind the back and it was in absence of proper service of summons of the proceedings. It was stated that thereafter application to set aside ex parte decree was allowed by the Court on 10th May, 2011, which order was biding to the petitioner. The respondent mentioned in her affidavit-in-reply, the proceedings initiated under the Domestic Violence Act, 2005 in view of physical and mental torture and to have social protection and that the Criminal Appeal in that regard is pending. Also referred to was the filing of criminal complaint under Secti