A party to a divorce decree cannot lawfully remarry during the pendency of an application under Order 9 Rule 13 CPC filed to set aside the ex parte decree.

1. Heard learned counsel for the petitioner.

2. The petitioner-husband has preferred this Civil Revision Petition under Section 115 of the Code of Civil Procedure against the impugned order dated 21.1.2011 passed by District Judge, Alwar in Civil Misc.Case No.41/13/10 whereby the learned Court below by allowing an application under Order 9 Rule 13 CPC filed by the non-petitioner-wife has set aside the exparte decree dated 27.8.2009 passed in Matrimonail Case No.29/2008.

3. Brief relevant facts for the disposal of this petition are that the petitioner filed a petition under Section 13 of the Hindu Marriage Act (hereinafter to be referred as “the Act”) against his wife-non-petitioner with a prayer to dissolve the marriage between the parties said to be solemnised on 13.12.2006 on various grounds. That petition was registered as Matrimonial Case No.29/2008 and in compliance of the notice issued, non-petitioner appeared before the Court below through her counsel and also filed reply to the petition. Subsequently, she and her counsel failed to appear and, therefore, on 29.5.2009 an order was passed to proceed exparte against the non-petitioner and thereafter evidence of the petitioner was recorded and ultimately on 27.8.2009 an exparte judgment and decree for divorce was passed dissolving the marriage between the parties. With a prayer to set aside the exparte decree dated 27.8.2009, the non-petitioner-wife filed an application under Order 9 Rule 13 CPC alongwith an application under Section 5 of the Limitation Act to which the petitioner filed his reply and the learned Court below vide impugned order dated 21.1.2011 by allowing the same set aside the exparte decree. Feeling aggrieved, the petitioner-husband is before this Court by way of this civil revision petition.

4. Assailing the impugned order, learned counsel for the petitioner has raised the following grounds:-

(i) Although, the non petitioner failed to show any sufficient cause for her or her counsel's absence during pendency of the main case in which subsequently exparte decree was passed on 27.8.2009 and also to show any sufficient cause to explain the delay made in filing the application under Order 9 Rule 13 CPC, the learned Court below without assigning any reasons allowed both the applications and set aside the exparte decree. According to learned counsel for the petitioner the meaning of the word “sufficient” is “adequate” or “enough” in as much as may be necessary to answer the purpose intended and if a party to the suit has acted in a negligent manner or there was a lack of bona fide on his part in view of the facts and circumstances of a case, the discretion vested in the Court under Order 9 Rule 13 CPC or Section 5 of the Limitation Act cannot be exercised in favour of such a party.

(ii) After passing of the exparte decree, the petitioner after the expiry of period of limitation prescribed for filing appeal against the decree, bonafidely remarried and, therefore, the application filed by the non-petitioner under Order 9 Rule 13 CPC stood infructuous but the learned Court below without considering this fact in a right perspective rejected the same only on the ground that the petitioner remarried on the next day on which the information about the application filed under Order 9 Rule 13 CPC was given to him.

In support of his submissions, learned counsel for the petitioner relied upon the cases of Parimal Vs. Veena alias Bharti reported in (2011) 3 SCC 545, Surendra Kumar Vs. Kiran Devi reported in AIR 1997 (Raj.) 63, Rajendra Prasad Yadav Vs. Prem Lata reported in 1996 (3) WLC 505, Smt.Lata Kamat Vs. Vilas reported in (1989) 2 SCC 613 and Babita Laul Vs. Vijay Laul reported in 2009 (4) CCC 542.

5. I have considered the submissions made on behalf of the petitioner and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law.

6. My findings with reasons on each of the grounds raised by the petiti