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JHARKHAND HIGH COURT
Shree Chandrashekhar and Ratnaker
Bhengra, JJ.
Jaya Kumari Singh – Appellant
versus
Shrey Kumar @ Shrya Kumar – Respondent
First Appeal No.30 of 2021
Decided on : 18.10.2022
(A) Family Courts Act, 1984 – Section 19(1) – Civil Procedure Code, 1908 – Section 96 – Incorporation of prayer in first appeal – Prayer for invalidation of marriage – Every marriage solemnized in contravention of one or other conditions prescribed for valid marriage is not void – Prayer sought to be incorporated in First Appeal is based on a separate and distinct cause of action for which appellant is required to seek declaration by filing a fresh suit – Normally, application for amendment should be entertained liberally and even at appellate stage amendment in pleadings may be permitted by Court – However, prayer sought to be incorporated in First Appeal by way of amendment if allowed would change nature of present appeal inasmuch as it would become composition of a First Appeal and a suit – Court not inclined to entertain present application and same is dismissed with liberty to appellant to work out her remedy as available to her in law. (Paras 5 and 6)
(B) Hindu Marriage Act, 1955 – Section 13(1)(i-b) – Civil Procedure Code, 1908 – Order IX Rule 13 and Order V Rule 1 – Setting aside ex-parte judgment – Every summon shall be accompanied by a copy of plaint – There is no postal receipt and tracking report in records about which Family Court has referred to in proceedings of divorce suit – In Judgment in divorce suit also there is no reference of any postal receipt or tracking report which was duly proved and marked as exhibit in trial – It must be pleaded and proved that other party had knowledge of date of hearing and sufficient time to appear before Court to answer plaintiff’s claim – These facts are not established by respondent even in present proceeding – Filing of transfer petition was not pleaded before Family Court in proceedings of divorce suit – Ex-parte Judgment set aside. (Paras 17, 18, 19, 32 and 33)
Result: First Appeal allowed.
ORDER
Shree Chandrashekhar, J.—
IA No.5756 of 2021
Though there is no substantial opposition to this application except stating that the appellant had knowledge about institution of the divorce suit, we are not inclined to entertain this application.
2. This application has been filed for incorporating a prayer in the present First Appeal seeking a declaration by this Court that marriage of the respondent solemnized on 30th June 2021 which according to him was registered on 2nd July 2021 was illegal and void ab initio.
3. It appears that the statement made by the respondent in reply to IA No. 2728 2021, which was an application seeking an order staying the operation of the judgment dated 26th March 2021 passed in Original Suit No.230 of 2020 wherein he disclosed that he has solemnized second marriage on 30th June 2021 which was registered on 2nd July 2021, was the reason for filing the present application seeking the aforesaid declaration of nullity from this Court.
4. The learned counsel for the appellant submits that in view of the judgment in “Savitri Pandey v. Prem Chandra Pandey” (2002) 2 SCC 73 the period of limitation for filing the present First Appeal was 90 days during which period the respondent solemnized the second marriage and, therefore, the said marriage of the respondent must be declared illegal and void ab initio.
5. In the above context, we may refer to the decision in “Smt. Lila Gupta v. Laxmi Narain & Ors.” AIR 1978 SC 1351 wherein the Hon’ble Supreme Court has observed that every marriage solemnized in contravention of one or the other conditions prescribed for valid marriage is not void. Moreover, the prayer sought to be incorporated in the First Appeal is based on a separate and distinct cause of action for which the appellant is required to seek a declaration by filing a fresh suit. This we have in mind that normally an application for amendment should be entertained liberally and even at the appellate stage amendment in the pleadings may be permitted by the Court. However, the prayer sought to be incorporated in the First Appeal by way of amendment if allowed would change the nature of the present appeal inasmuch as it would become composition of a First Appeal and a suit.
6. Therefore, we are not inclined to entertain the present application and the same is dismissed with liberty to the appellant to work out her remedy as available to her in law.
First Appeal No.30 of 2021
7. Original Suit No. 230 of 2020 has been decreed by an ex-parte judgment dated 26th March 2021 against which Jaya Kumari Singh has preferred this First Appeal under section 19(1) of the Family Courts Act, 1984.
8. On 18th June 2020, Original Suit No. 230 of 2020 (in short, “divorce suit”) was instituted by Shrey Kumar @ Shrya Kumar seeking a decree of divorce by dissolution of his marriage solemnized with the appellant on 5th March 2017 at Karmik Nagar, Saraidhela, District Dhanbad, on the ground that his wife deserted him since 15th February 2018.
9. By an order dated 8th July 2021, the operation of the impugned judgment dated 26th March 2021 passed in the divorce suit has been stayed by a co-ordinate Bench of this Court.
10. The first ground of challenge laid by the appellant to the ex-parte judgment is that without a report on service of summons upon the appellant the divorce suit could not have been set for ex-parte hearing against her by the order dated 15th February 2021.
11. Per contra, Mr. Mahesh Tewari, the learned counsel for the respondent, has referred to an order passed by this Court in WP(C) No. 3265 of 2019 in which the judgments of the Hon’ble Supreme Court in “G.P Srivastava v. R.K Raizada & Ors.” (2000) 3 SCC 54 and “Neerja Realtors Private Limited v. Janglu (dead) through legal representative” (2018) 2 SCC 649 have been relied upon, to submit that the appellant who had knowledge of institution of the divorce suit inasmuch as she had filed Transfer Petition (Civil) No.16 of 2020 but did not appear before the Family
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