The remarriage of the spouse is not a relevant factor to be taken into account in deciding the merits of the application filed for setting aside the ex-parte decree of divorce.

ORDER :

This Civil Revision Petition is filed by the petitioner under Article 227 of the Constitution of India assailing the impugned orders dated 01.11.2017 passed in I.A.No.602 of 2017 in F.C.O.P.No.503 of 2013 on the file of the XV Additional District & Sessions Judge-cum-II Additional Family Court, Kukatpally at Miyapur.

2. This application in I.A.No.602 of 2017 was filed by the petitioner/wife under Order IX, Rule 13 read with Section 151 of Civil Procedure Code (for short ‘CPC’) to set aside the ex-parte divorce order dated 09.03.2017. The trial Court, on careful appreciation of the facts, set aside the ex-parte decree by condoning 12 days of delay, as per the orders dated 22.06.2017 in I.A.No.601 of 2017.

3. Feeling aggrieved by the said orders, this CRP is filed alleging that the lower Court ought to have considered that the petitioner has already contracted second marriage, the same was informed to the Court and the validity of the second marriage is now in question, the lower Court ought to have considered that by virtue of ex-parte orders dated 09.03.2017 the marriage between the parties has been dissolved and that the petitioner has married one B.Sunitha on 18.04.2017 after expiry of mandatory period of appeal and the second marriage is valid. It is only thirty days period under Section 28 of Hindu Marriage Act to file an application to set aside the ex-parte decree but the respondent/wife has filed the application with a delay of 12 days and it was mechanically condoned.

4. Heard both sides. The submissions made on either side have received due consideration of this Court. Perused the record.

5. For the sake of convenience, the parties to this petition are hereinafter referred to as petitioner and respondent as they were arrayed in F.C.O.P.No.503 of 2013 before the trial Court.

6. The petitioner herein is the husband, he has filed FCOP No.503 of 2013 against his wife on the file of the XV Additional District and Sessions Judge-cum-II Additional Family Court, Kukatpally at Miyapur. It appears he has obtained ex-parte divorce dissolving the marriage dated 09.05.1997. Wife has come to know about the ex-parte decree of divorce and she has immediately filed the application in I.A.No.601 of 2017 under Section 5 of Limitation Act to condone the delay of 12 days, whereas in I.A.No.602 of 2017 under Order IX, Rule 13 read with Section 151 of CPC to set aside the ex-parte decree, both the applications were allowed, delay was condoned and the ex-parte decree dated 09.03.2017 was set aside.

7. Assailing the orders in I.A.No.602 of 2017 the present civil revision petition is filed. It is pertinent to note that the husband did not challenge the orders in I.A.No.601 of 2017 wherein and where under 12 days of delay is condoned. In-fact consequent to the orders in I.A.No.601 of 2017, as delay is condoned, I.A.No.602 of 2017 was allowed and the ex-parte decree for divorce is set aside.

8. It is the case of the petitioner/husband that he has contracted second marriage on 18.04.2017 after expiry of 30 days period from the date of obtaining the divorce and that in such circumstances, setting aside the ex-parte decree of divorce creates legal issues and complications. Learned counsel for the petitioner has also relied upon the principles laid in the following decisions :

(1) Dr.Lokeshwari Vs. Dr.Srinivasa Rao, 2000 (3) ALD 350 (DB).

(2) A.Raja Sundari Vs. Suresh Kumar, AIR 2016 Madras 160 .

(3) Vijayalakshmi Vs. Kannappan, 2009 CJ (Mad) 5695

9. I have carefully perused the principles laid in the above decision. The gist of the ratio laid in the above decisions is that when spouse has remarried after expiry of appeal time, filing of application by the first wife or husband, to set aside the ex-parte decree and allowing the same may defeat the intention of the legislature to settle the rights of the parties permanently after divorce at shortest period of time.

10. In this context, it is pertinent to note that it is not the case of the petitioner that