B.G. Sharada vs B.R. Mallikarjuna

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 04.08.2010 impugned at Annexure-F to the petition. The said order is passed in Misc. No. 19/2007 filed by the petitioner seeking restoration of M.C. No. 34/2005. The facts in brief are that the marriage of the petitioner and respondent had been solemnized on 02.06.1974. Though they had a child from the said wedlock, there were certain differences between them from the beginning and as such they were before the Court in several proceedings. The petition in M.C. No. 34/2005 was one among them, filed by the respondent seeking dissolution of the marriage. The Court below after considering the case put forth by the respondent herein has granted the ex-parte decree on 17.3.2006. The petitioner had filed Misc. No. 19/2007 under Order 9 Rule 13 of C.P.C. seeking restoration of the petition for consideration on merits after providing opportunity to the petitioner. The said petition has been dismissed by order dated 04.08.2010, which is assailed before this Court.

Learned counsel for the petitioner while assailing the said order would contend that the Court below was not justified in dismissing the petition only on the ground that the respondent herein had married subsequent to the grant of judgment and decree of dissolution and therefore, when he has legally married, at this juncture, the petition cannot be restored as no purpose would be served even if ultimately the petition seeking dissolution of marriage is dismissed. It is contended that the petitioner being the wife of the respondent had her legal rights to be established before the Court. Therefore, the Court was required to keep in view these aspects and should have restored the main petition on file so that the rival contentions on merit could have been considered by the Court. In that view, learned counsel for the petitioner would contend that even the other observations of the Court below with regard to the case pleaded by the petitioner seeking restoration on the ground that the notice had not been properly understood by her, is also not appreciated in its correct manner. Hence, the same is liable to be set-aside.

Learned counsel for the respondent would contend that the Court below in fact has noticed the subsequent legal marriage of the respondent as one of the considerations to be kept in view to determine as to whether the position has stood altered or as to whether the third party rights created would be prejudiced while seeking to consider the case relating to the default committed by the petitioner. It is contended that when the Court below has taken into consideration the explanation put forth by the petitioner relating to her non appearance in the petition and thereafter the Court has arrived at the conclusion that the same cannot be accepted, the order does not call for interference.

In the light of the rival contentions, the fact that the petitioner and the respondent had certain differences for a long period of time i.e., over more than 25 years appears to be the accepted position. In the instant case, the petitioner had contended that though the notice in M.C. No. 34/2005 was served on her, she was under the impression that same related to some papers in respect of the proceedings that were already pending between them. In that circumstance, it is contented that she did not choose to appear in the petition as she was totally unaware that it was a different proceeding. It is further contended that when she had visited the place of work of the respondent due to non-payment of the maintenance ordered in O.S. No. 77/2001, it had come to her knowledge that the respondent had stopped paying the maintenance in view of the decree of dissolution of marriage. The said explanation in fact has been taken into consideration by the Court below in that regard, in a circumstance when the parties had been litigating and in the earlier proceedings and when the petitioner was being represented by an advocate, certainly, even if the explanation that some papers which had been served on her was presumed by her to be papers relating to the cases that were already pending, the normal conduct of the petitioner should have been to inform the learned counsel representing her in those cases about the papers received by her. If this aspect of the matter is also kept in view and the reasoning adopted by the Court below is taken into consideration, it would appear that the Court below is justified in not accepting the explanation put forth since such explanation of the petitioner does not stand to reason.

It is no doubt true that when the ex-parte orders are passed and if rights of the parties are affected, the Courts would take a lenient view in restoring the main case, so that the parties have the liberty of litigating on merits and a just decision could be rendered. The position of law is also well settled that while exercising such right and condoning the delay or the default of the parties, the rights accrued to the parties in the meanwhile and also third party rights which have come into existence in the meanwhile is also to be kept in view. If this aspect of the matter is taken into consideration, it is seen that the judgment and decree had been passed in M.C. No. 34/2005 on 17.03.2006. It is not seriously in dispute that the respondent herein had re-married by the time the petitioner had filed the petition for restoration. Therefore if the respondent has contracted a legal and valid marriage, the right of the subsequent wife of the respondent cannot be jeopardised by setting aside the decree of dissolution and restoring the status of the petitioner. Therefore, if this aspect of the matter is kept in view, the main petition even if it was restored and was ultimately dismissed, the rights of the parties herein would have been restored to a position of carrying on with the marital relationship, when the respondent had already married another person. No doubt, one other aspect could have been with regard to grant of permanent alimony or such other orders for maintenance after separation. In that regard, it is not in dispute that in O.S. No 77/2001 an order of maintenance has already been passed in favour of the petitioner and charge over the property is also created. That right in any event is available to the petitioner to be executed or to seek for further enhancement of the maintenance, if she is entitled to in law. In that view of the matter, since the rights of the parties to that extent could be exercised in accordance with law even in a different proceeding, the order impugned herein in any event would not call for interference.

The writ petition stands disposed of accordingly.